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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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