- 33 -
and that the burden of proof as to that issue should be on
respondent." Majority op. p. 19. The majority's hesitation to
make such a holding is based on the opinion of the Court of
Appeals for the Ninth Circuit (Ninth Circuit) in Abatti v.
Commissioner, 644 F.2d 1385 (9th Cir. 1981), revg. T.C. Memo.
1978-392. Respondent argues, and the majority appears to
believe, that Abatti holds that, if a new theory is not
inconsistent with the determination in the notice, then it is not
new matter. See majority op. pp. 19-20. Respondent’s argument
ignores the disjunctive nature of our traditional interpretation:
a new theory is new matter under either the inconsistency
alternative or the different evidence alternative. Nevertheless,
if Abatti means that the Ninth Circuit’s interpretation of the
term “new matter” is inconsistent with our interpretation, then
the doctrine established by Golsen v. Commissioner, 54 T.C. 742
(1970), affd. 445 F.2d 985 (10th Cir. 1971), comes into play.
The Golsen doctrine is that, notwithstanding that we are a
national court and have the authority to render a decision
inconsistent with any Court of Appeals, where a reversal would
appear inevitable due to the clearly established position of the
Court of Appeals to which an appeal would lie, we shall not
insist on our view, but shall follow the Court of Appeals
decision on point. Id. at 757; accord Lardas v. Commissioner, 99
T.C. 490, 494-495 (1992).
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