John D. Shea - Page 42




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               BEGHE, J., concurring:  More than 4 years ago Judge Raum               
          made the suggestion that bears fruit today, that section 7522(a)            
          provides a justification for shifting the burden of proof to                
          respondent as a sanction for vague notices of deficiency.  See              
          Ludwig v. Commissioner, T.C. Memo. 1994-518.                                
               I write on to respond to some of the objections to the                 
          majority opinion expressed in Judge Halpern's concurrence.                  
               Judge Halpern's normative explication of the disjunctive               
          tests for new matter--inconsistency and different evidence--is              
          impeccable so far as it goes.  But he pays inadequate attention             
          to another strand in the Tax Court's jurisprudence on this                  
          subject, exemplified by Sorin v. Commissioner, 29 T.C. 959                  
          (1958), affd. per curiam 271 F.2d 741 (2d Cir. 1959), that the              
          Court of Appeals for the Ninth Circuit relied upon, along with              
          Judge Learned Hand's opinion in Olsen v. Helvering, 88 F.2d 650,            
          651 (2d Cir. 1937), to reverse us for our shifting of the burden            
          of proof in Abatti v. Commissioner, 644 F.2d 1385 (9th Cir.                 
          1981), revg. T.C. Memo. 1978-392.  That strand is to the effect             
          that a vaguely broad notice that does no more than state an                 
          intention to assess a deficiency in a specified amount is not               
          just a valid notice.  It's an empty bottle that can be filled and           
          made specific with any theory and won't thereby be considered an            
          inconsistent theory or as requiring different evidence so as to             
          justify the shifting of the burden of proof to the Commissioner.            





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