- 17 -
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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