- 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".
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