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the assertion in the amended answer either alters the
original deficiency or requires the presentation of
different evidence, then respondent has introduced a
new matter. * * *
A new theory may or may not constitute new matter. A new
theory in the answer is new matter if either (1) the new theory
is inconsistent with the notice (the inconsistency alternative),
or (2) it requires the presentation of different evidence, i.e.,
evidence different from that necessary to prove a well-pleaded
assignment of error (the different evidence alternative). It is
illogical, and defies common sense, to believe that, in the case
of a disjunctive test such as our test for new matter, the
failure to satisfy one alternative precludes the possibility of
satisfying the other. For instance, it does not follow from
Achiro that, if a new theory is consistent with the notice, then
it cannot be new matter. A finding that a new theory is
consistent with the notice simply leads to the conclusion that
the new theory is not new matter pursuant to the inconsistency
alternative; it does not foreclose the possibility that the new
theory could be new matter pursuant to the different evidence
alternative.
Golsen Doctrine
The majority finds, and I agree, that "[b]ased on our
previously articulated test for determining whether respondent's
reliance on section 66(b) is new matter, we would hold that it is
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