- 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...)Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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