- 41 - of horizontal equity to place the burden of proof on the taxpayer in the first case and on the Commissioner in the second case, when both taxpayers have identical tax attributes and received identical notices. Conclusion I fail to see what the majority's analysis adds to the jurisprudence of this Court, when attention to Golsen v. Commissioner, supra, would allow us to dispose of this issue without discussing section 7522 or respondent's intent. The Court is always free to place the burden of proof on respondent pursuant to the first sentence of Rule 142(a), which provides: "The burden of proof shall be upon the petitioner, except as otherwise * * * determined by the Court".3 Placing the burden on respondent because section 7522 makes something "new matter", which otherwise is not, obfuscates not only our interpretation of the Ninth Circuit's jurisprudence, but our own jurisprudence as well. For the foregoing reasons, I respectfully concur in result. CHABOT, WHALEN, and CHIECHI, JJ., agree with this concurring in result opinion. 3 That portion of the rule would support the result that Judge Beghe would accomplish, and satisfy his pragmatic concern, without doing violence to the term "new matter".Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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