- 31 -
HALPERN, J., concurring in result: I agree with the result
reached by the majority. However, I write separately because I
disagree with the following steps taken by the majority in
reaching that result: one, incorporating a requirement of
section 7522 into the definition of the term "new matter" and,
two, suggesting that respondent's intent in drafting the notice
of deficiency is relevant to the determination of whether a new
theory is new matter with respect to such notice.
The Term “New Matter”
Rule 142(a) provides:
(a) General: The burden of proof shall be upon
the petitioner, except as otherwise provided by statute
or determined by the Court; and except that, in respect
of any new matter, increases in deficiency, and
affirmative defenses, pleaded in the answer, it shall
be upon the respondent. * * *
The majority recognizes that "[a] substantial body of case
law has developed in this Court setting forth criteria for
determining when the Commissioner is raising a 'new matter'."
Majority op. pp. 14-15. An examination of that case law reveals
a disjunctive test to determine whether a new theory raised in
respondent's answer is new matter for purposes of Rule 142(a).
In Achiro v. Commissioner, 77 T.C. 881, 890 (1981), we stated:
The assertion of a new theory which merely
clarifies or develops the original determination
without being inconsistent or increasing the amount of
the deficiency is not a new matter requiring the
shifting of the burden of proof. * * * However, if
Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 NextLast modified: May 25, 2011