John D. Shea - Page 41




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          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".                            




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