- 34 - 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 notPage: Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Next
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