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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.
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