John D. Shea - Page 26




                                       - 26 -                                         

          benefits of community property law to petitioner, and different             
          evidence will be necessary to resolve the section 66(b) issue.              
          Under these circumstances, treating the section 66(b) issue as a            
          new matter upon which respondent has the burden of proof is both            
          consistent with our prior practice and supported by the statutory           
          requirements of section 7522.22   We, therefore, hold that where            
          a notice of deficiency fails to describe the basis on which the             
          Commissioner relies to support a deficiency determination and               
          that basis requires the presentation of evidence that is                    
          different than that which would be necessary to resolve the                 
          determinations that were described in the notice of deficiency,             
          the Commissioner will bear the burden of proof regarding the new            
          basis.  To hold otherwise would ignore the mandate of section               
          7522 and Rule 142(a).  Respondent must therefore bear the burden            
          of proof regarding application of section 66(b).                            
               Respondent argues that he has met that burden and that the             
          following facts demonstrate that petitioner treated the income as           
          if he were solely entitled to it: (a) Gross receipts were                   


               22Placement of the burden of proof affects only the                    
          obligation to prove facts.  If a new theory or basis is                     
          completely dependent upon the same evidence required by the basis           
          described in the notice of deficiency, there would normally be              
          little practical reason to shift the burden of proof.  The                  
          taxpayer would not suffer from lack of notice concerning what               
          facts must be established.  Indeed, in that situation, the new              
          theory would be a purely legal as opposed to a factual issue.               
          The burden of proof does not affect the Court's determination of            
          what the law is.                                                            




Page:  Previous  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  Next

Last modified: May 25, 2011