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as if he were solely entitled to the income and whether he failed
to notify his wife of the nature and amount of that income. See
Mischel v. Commissioner, T.C. Memo. 1997-350. Based on our
previously articulated test for determining whether respondent's
reliance on section 66(b) is new matter, we would hold that it is
and that the burden of proof as to that issue should be on
respondent.
However, on brief respondent relies on Abatti v.
Commissioner, 644 F.2d 1385 (9th Cir. 1981), revg. T.C. Memo.
1978-392.16 Based on Abatti, respondent argues that the proper
test for determining whether respondent has introduced a "new
matter" on which he bears the burden of proof depends on whether
the basis for the deficiency advanced at trial or in an amended
answer is "inconsistent" with the language contained in the
notice of deficiency. Based on Abatti, respondent asserts that
if a notice of deficiency is broadly worded and the Commissioner
later advances a theory that is "not inconsistent" with that
language, the theory does not constitute a new matter, and the
burden of proof remains with the taxpayer.
In Abatti v. Commissioner, supra, the Court of Appeals for
the Ninth Circuit characterized the notice of deficiency as a
notice that "informed the taxpayers that there were deficiencies
16The Court of Appeals for the Ninth Circuit is the court to
which this case is appealable.
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