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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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