- 30 - meeting with petitioner and the accountant. Respondent also discussed section 263A in the trial memorandum he submitted before trial. Moreover, petitioners were not prejudiced by respondent’s section 263A argument. Accordingly, we shall not bar respondent from relying upon section 263A. Stewart v. Commissioner, 714 F.2d 977, 985-987 (9th Cir. 1983), affg. T.C. Memo. 1982-209; see also Achiro v. Commissioner, 77 T.C. 881, 891 (1981). B. New Matter and Burden of Proof Section 752211 requires the Commissioner to issue a notice of deficiency that contains a description of the basis for the Commissioner’s determination. In this case, respondent issued two notices of deficiency. The first notice of deficiency, issued with respect to 1993, described respondent’s basis for disallowing petitioners’ Schedule C expenses as follows: It is determined that schedule C expenses are $0.00 rather than $29,254.00 for the taxable year 1993. Since your restaurant business was not in operation in the taxable year, all otherwise allowable expenses are start up expenses which must be amortized over not less than 60 months starting in the month that the restaurant is open for business. Further, it has not been established that any amount represents an ordinary and necessary business expense or was expended for the purpose designated. 11Sec. 7522 applies to notices of deficiency issued after Jan. 1, 1990.Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Next
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