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Indeed, the majority's holding appears to require our
consideration of a section 7522 requirement in determining what
is new matter. I have difficulty understanding why the majority
concludes that section 7522 affects the allocation of the burden
of proof. Section 7522 makes no mention of the burden of proof.
The majority has not persuaded me that, on account of a violation
of section 7522, Congress intended a particular remedy (i.e.,
allocating the burden of proof to the Commissioner as opposed to,
for instance, extending a period of limitations, if it operates
against the taxpayer, or awarding attorney's fees).1 Further,
assume the Commissioner issues a valid but inadequately
descriptive notice, in violation of section 7522. If the
Commissioner introduces no new theory, would the majority remedy
the Commissioner's violation of section 7522 by placing the
burden of proof upon him?2
1
The only remedy that we can assuredly conclude is not
within the purview of sec. 7522 is an invalidation of such
inadequate notice. See sec. 7522.
2
In that vein, consider Judge Beghe's concern:
that a vaguely broad notice that does no more than
state an intention to assess a deficiency in a
specified amount is not just a valid notice. It's an
empty bottle that can be filled and made specific with
any theory and won't thereby be considered an
inconsistent theory or as requiring different evidence
so as to justify the shifting of the burden of proof to
the Commissioner.
(continued...)
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