John D. Shea - Page 20




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          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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