- 30 -                                         
          determined by the Court, the burden of proof is on the taxpayer.            
          Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).10  The           
          burden of proof is on the Commissioner, however, in respect of any          
          new matter not raised in the notice of deficiency, increases in             
          deficiency, and affirmative defenses raised by the Commissioner in          
          an answer.  Rule 142(a).                                                    
               A notice of deficiency must “describe the basis” for the tax           
          deficiency.  Sec. 7522.  In some situations, failure to describe            
          the basis for the tax deficiency in the notice of deficiency                
          results in a new matter being raised under Rule 142(a).  Shea v.            
          Commissioner, 112 T.C. 183, 197 (1999); Wayne Bolt & Nut Co. v.             
          Commissioner, 93 T.C. 500, 507 (1989); Estate of Ballantyne v.              
          Commissioner, T.C. Memo. 2002-160.  A new matter is raised when the         
          basis or theory on which the Commissioner relies is not stated or           
          described in the notice of deficiency and the new theory or basis           
          requires the presentation of different evidence.  Wayne Bolt & Nut          
          Co. v. Commissioner, supra at 507.  In such situation, the burden           
          of proof is placed on the Commissioner with respect to that issue.          
          Id.                                                                         
               10   In certain circumstances, if the taxpayer introduces              
          credible evidence with respect to any factual issue relevant to             
          ascertaining the proper tax liability, sec. 7491 places the burden          
          of proof on the Commissioner.  Sec. 7491(a); Rule 142(a)(2).                
          Decedent’s estate does not contend that sec. 7491 applies in this           
          case.                                                                       
Page:  Previous   20   21   22   23   24   25   26   27   28   29   30   31   32   33   34   35   36   37   38   39   NextLast modified: May 25, 2011