John D. Shea - Page 17




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          appears to us that respondent gave no thought to community                  
          property law or section 66(b) when the notice of deficiency was             
          prepared.15  Respondent's apparent failure to even consider                 
          community property law, or section 66(b) in making his deficiency           
          determination supports our conclusion that section 66(b) was not            
          implicit in the notice of deficiency.  However, even if                     
          respondent's agents had considered such matters, it does not                
          follow that they were "necessarily implicit" in the notice of               
          deficiency.  The objective language in the notice of deficiency             
          remains the controlling factor.  As indicated in the preceding              
          paragraph, there is nothing in the notice of deficiency that                
          makes section 66(b) "necessarily implicit".                                 
               The factual basis required to establish whether STG's income           
          was understated is different from the factual basis necessary to            
          establish whether community property law or section 66(b)                   
          applies.  The facts necessary for a determination of income                 


               14(...continued)                                                       
          petitioner's 1992 taxable year.  Petitioner alleged, and the                
          attached revenue agent's report shows, that the revenue agent               
          computed the 1992 deficiency based on joint filing status as                
          opposed to the married filing separate status used in the notice            
          of deficiency.  We also note that the notice of deficiency for              
          1992 was addressed to "John D. and Flora [sic] M. Shea," even               
          though the attached schedules reflect tax liability for only John           
          D. Shea.                                                                    
               15At trial, respondent's counsel could not clarify this                
          point other than to state:  "I think it was done pursuant to                
          66(b), although 66(b) I concede is not mentioned in the stat                
          notice."                                                                    




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