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Generally, petitioners bear the burden of proof.8 Rule
142(a). Respondent, however, bears the burden of proof with
respect to any new matter pleaded in the answer. Id. An
assertion in the answer is treated as a new matter when it either
increases the original deficiency or requires the presentation of
different evidence. Shea v. Commissioner, 112 T.C. 183, 197
(1999); Wayne Bolt & Nut Co. v. Commissioner, 93 T.C. 500, 507
(1989). A new theory that merely clarifies or develops the
original determination is not a new matter in respect of which
respondent bears the burden of proof. Shea v. Commissioner,
supra at 191; Wayne Bolt & Nut Co. v. Commissioner, supra at 507.
In notices of deficiency for 1994, 1995, and 1996 issued to
petitioners, respondent determined that petitioners were married
and that petitioners’ correct filing status for 1995 and 1996 was
married filing separate. The explanation of adjustments
contained in petitioners’ notices of deficiency states “Since you
were married and domiciled in a community property state, we have
computed your tax liability in accordance with community property
laws.”
In their separate petitions, petitioners claimed that they
were not married during the years in issue because the Texas
State court had annulled their marriage. In reply to
8 Sec. 7491(a) is not applicable to this case. Rinehart v.
Commissioner, T.C. Memo. 2002-9.
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