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the different evidence alternative preempts the inconsistency
alternative because Stewart postdates Abatti.
I agree with the majority that, pursuant to the different
evidence alternative, respondent's reliance on section 66(b) is
new matter within the meaning of Rule 142(a). Majority op. p.
19. The Golsen doctrine is no bar to that conclusion. For the
reasons stated, I do not believe that respondent’s argument, to
wit, if a new theory is not inconsistent with the determination
in the notice, then it is not new matter, would necessarily
succeed in the Ninth Circuit. Therefore, I conclude that, under
Golsen, we need not alter our disposition of the instant case on
account of the jurisprudence of the Ninth Circuit.
Why Section 7522?
Instead of holding that respondent's reliance on section
66(b) is new matter pursuant to our case law, and in accord with
the Ninth Circuit's opinion in Stewart, the majority makes
various analytical errors, which I feel compelled to address.
First, the majority incorporates the legislative mandate of
section 7522, that the notice of deficiency shall describe an
adequate basis, into the definition of “new matter”. Imposition
of the burden of proof is, in the absence of a legislative
directive, a judicial function. The majority seems to believe
that section 7522 should influence the Ninth Circuit in
determining what constitutes new matter. See majority op. p. 23.
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