John D. Shea - Page 34




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          Jurisprudence of the Ninth Circuit                                          
               An examination of Abatti and subsequent Ninth Circuit                  
          authority leads me to believe that the Golsen doctrine does not             
          bar us from applying our traditional interpretation.  In Abatti,            
          the Ninth Circuit was reviewing our application of our Rule                 
          142(a).  The Ninth Circuit relied on our opinion in Sorin v.                
          Commissioner, 29 T.C. 959 (1958), affd. per curiam 271 F.2d 741             
          (2d Cir. 1959), for an interpretation of the term "new matter".             
          Abatti v. Commissioner, supra at 1390.  In Sorin, we stated that,           
          when a:                                                                     
               determination is not broad enough to include the new                   
               ground, its presumptive correctness does not then                      
               extend to such new matter, which he [the Commissioner]                 
               is required to raise affirmatively in his answer.                      
               Under the Tax Court rules, the burden of proof as to it                
               is expressly placed upon respondent.  * * *                            
                    But when the determination is made in indefinite                  
               and general terms, and is not inconsistent with some                   
               position necessarily implicit in the determination                     
               itself, the situation is quite different.  * * *                       

          29 T.C. at 969.  In Sorin, the different evidence alternative was           
          not under consideration.  We held that the burden of proof should           
          remain on the taxpayer because, contrary to the taxpayer's                  
          contention, the Commissioner had not taken a position                       
          inconsistent with the notice.  The Ninth Circuit reached a                  
          similar result in Abatti.  There, too, the taxpayer did not                 








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