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Our jurisprudence and that of the Ninth Circuit is
sufficiently murky on this issue to justify using section 7522(a)
to clarify the situation and set ourselves and our litigants on
the right path for the future.
In so using section 7522(a), I frankly am impelled by
pragmatic considerations. Commentators have suggested that the
present situation is unsatisfactory because it encourages--even
rewards--vagueness and imprecision in the Commissioner's
deficiency notices and discourages the specificity that tells
taxpayers the points they must put in issue in their petitions
and prove at trial. It's appropriate to use section 7522(a) as
the device for repudiating the line of cases represented by Sorin
v. Commissioner, supra.
There's a theoretical as well as a pragmatic justification
for so using section 7522(a) that answers the questions posed in
Judge Halpern's concurrence, pp. 36-37. Judge Halpern follows up
the general question--Just what is section 7522(a) supposed to
accomplish?--by asking what justifies our decision to sanction a
vague notice by shifting the burden of proof when the
Commissioner's theory is finally put forth, as opposed to
applying some other sanction, such as extending the period of
limitations or awarding attorney's fees. The answer, I submit,
is that shifting the burden on the ground that the theory, once
stated by the Commissioner, constitutes "new matter" is an
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