- 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