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a proper means of enforcement for section 7522. Such holding is
both unnecessary and inappropriate on the facts before us.
Looking Beyond the Notice of Deficiency
My second concern with the majority's analysis is its
suggestion that there may be a case in which the Commissioner's
intent in drafting the notice of deficiency will determine
whether a new theory is new matter under either the inconsistency
or different evidence alternatives. The majority states:
“Respondent failed to offer any evidence that indicated that
respondent considered the application of community property law
or section 66(b) in making his determination." Majority op. p.
16. The majority then finds: "[R]espondent gave no thought to
community property law or section 66(b) when the notice of
deficiency was prepared." Id. at 17. That finding, the majority
continues, “supports our conclusion that section 66(b) was not
implicit in the notice of deficiency.” Id. Although the
majority makes obeisance to the determining force of the notice’s
language (“The objective language in the notice of deficiency
remains the controlling factor.” Id.), the fact that the majority
finds “support” in respondent’s failure to consider section 66(b)
suggests that intent has some role in determining whether a new
theory is a new matter. If intent plays some role, then there is
the possibility that, in a close case, intent (or lack thereof)
could tip the balance. I disagree, and think that the majority
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