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raise, nor did the Ninth Circuit address, the different evidence
alternative.
Stewart v. Commissioner, 714 F.2d 977 (9th Cir. 1983), affg.
T.C. Memo. 1982-209, is a post-Abatti case that also required the
Ninth Circuit to interpret Rule 142(a)’s use of the term “new
matter”. The Ninth Circuit concluded: "It is well settled that
the assertion of a new theory that merely clarifies the original
determination, without requiring the presentation of different
evidence, does not shift the burden of proof." Id. at 990
(citing Achiro v. Commissioner, 77 T.C. at 890). Again, the
Ninth Circuit stated an interpretation of the term “new matter”
that, if considered in isolation, could be misunderstood to
exclude alternative interpretations and would imply that, in
every instance, a new theory that does not require different
evidence is not new matter. I do not believe we must infer that,
in going from Abatti to Stewart, the Ninth Circuit replaced one
singular interpretation of the term “new matter”, i.e.,
inconsistency, with another, i.e., different evidence. Clearly
the Ninth Circuit has adopted both alternatives of our
disjunctive test. Although the Ninth Circuit has stated each
alternative in exclusive terms at different times, I think that
those statements can be harmonized. If, however, either test
preempts the other in the Ninth Circuit, we must conclude that
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