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should make it clear that there is no connection between the
Commissioner’s intent and whether a new theory is implicit in a
notice of deficiency.
Consider two taxpayers, each with unreported income, each
married and filing separately, and each residing in a community
property jurisdiction. Each receives an identical notice
determining a deficiency in income tax on account of the omission
of $100 in gross income. The notices do not mention section
66(b). Each taxpayer concedes receipt of the $100 and its
taxable nature. Each pleads, nevertheless, that, as the receipt
was community property, he is taxable only on one-half. In one
case, in determining the deficiency, it was the Commissioner's
intention (unexpressed in the notice) to disallow the benefits of
community property under section 66(b). In the second case, the
Commissioner was unaware that the receipt was community property.
He becomes aware only after his right to amend the answer without
leave of Court has expired. See Rule 41(a). The Commissioner’s
awareness may be a factor in determining whether, under Rule
41(a), the Court should give leave to amend the answer to
incorporate the new theory. Assuming leave to amend is given,
the question of whether the new theory constitutes new matter
under Rule 142(a) involves different considerations, viz, whether
the new theory is inconsistent with the notice or requires
different evidence. Simply stated, it would violate principles
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