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The majority, however, has convinced itself that a
reasonable method for enforcing the requirement of section 7522
is to allocate the burden of proof to the Commissioner with
regard to any new theory that both (1) was not stated or
described in the notice of deficiency and (2) requires the
presentation of different evidence. Majority op. pp. 23, 25. I
do not understand the cumulative aspect of such a test. Clearly,
any new theory that requires the presentation of different
evidence, thus satisfying the second prong, could not have been
stated or described in the notice and, thus, will always satisfy
the first prong. Adding the first prong, however, is a
rhetorical device that serves only to import the section 7522
requirement into the new matter inquiry. The majority merely
couples one of our traditional disjunctive alternatives, which
has been explicitly adopted by the Ninth Circuit, to a
restatement of the section 7522 requirement, to opine on what is
2(...continued)
Beghe, J., concurring p. 42. Witness the case at bar, where the
majority has found that, under the different evidence
alternative, respondent raised new matter relative to his vaguely
broad notice by trying, with consent, the sec. 66(b) issue. It
seems a sufficient and appropriate response to Judge Beghe’s
concern to say that, if a new theory is both not inconsistent
with a notice of deficiency and does not require different
evidence, petitioner has not been prejudiced by such new theory.
Therefore, notwithstanding that the notice may be an "empty
bottle", there is no harm requiring redress.
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