- 20 -
and the amount of them but contained no explanation". Id. at
1389. The Court of Appeals for the Ninth Circuit then stated:
This type of notice is sufficient to raise the
presumption of correctness and to place the burden of
proof on the taxpayer. Barnes v. CIR, 408 F.2d 65 (7th
Cir.), cert. denied, 396 U.S. 836, 90 S.Ct. 94, 24
L.Ed.2d 86 (1969). Judge Hand, in Olsen v. Helvering,
supra, stated, "the notice is only to advise the person
who is to pay the deficiency that the Commissioner
means to assess him; anything that does this
unequivocally is good enough." [Id. at 1389-1390
citation omitted.]
The court went on to state:
In fact, if a deficiency notice is broadly worded and
the Commissioner later advances a theory not
inconsistent with that language, the theory does not
constitute new matter, and the burden of proof remains
with the taxpayer. [Id. at 1390.]
We have recognized that the above-quoted language from Abatti v.
Commissioner, supra, may represent a standard for determining
what constitutes a "new matter" that is at variance with the
current standard articulated by this Court. See Achiro v.
Commissioner, 77 T.C. 881, 890-891 (1981);17 Yamaha Motor Corp.,
17In Achiro v. Commissioner, 77 T.C. at 891, we stated:
if respondent does not indicate in the notice of
deficiency that he is relying on section 482, but
alerts the taxpayer of his reliance on section 482
formally in pleadings far enough in advance of trial so
as not to prejudice the taxpayer or take him by
surprise at trial, then the burden of proof shifts to
(continued...)
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