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Petitioner argues that respondent raised new matters by
challenging petitioner's claimed deductions for capital loss
carryforwards and rental expenses. The Court interprets
petitioner's argument to be that respondent bears the burden of
proof with regard to these issues. Respondent asserts that the
notice of deficiency resulted from petitioner's failure to file
timely a tax return for 1999. Respondent contends that no new
matters were raised, and that respondent simply requested
substantiation for the deductions petitioner claimed on the
return submitted after she received the notice of deficiency.
A new theory that is presented to sustain a deficiency is
treated as a new matter when it either alters the original
deficiency or requires the presentation of different evidence.
Hutchinson v. Commissioner, 116 T.C. 172, 182 (2001) (citing
Wayne Bolt & Nut Co. v. Commissioner, 93 T.C. 500, 507 (1989));
Shea v. Commissioner, 112 T.C. 183, 197 (1999); Colonnade
Condominium, Inc. v. Commissioner, 91 T.C. 793, 795 n.3 (1988);
Va. Educ. Fund v. Commissioner, 85 T.C. 743, 751 (1985), affd.
per curiam 799 F.2d 903 (4th Cir. 1986); Achiro v. Commissioner,
77 T.C. 881, 890 (1981). A new theory which merely clarifies or
develops the original determination made in the notice of
deficiency without being inconsistent or increasing the amount of
the deficiency is not new matter in respect of which the
Commissioner bears the burden of proof. Hutchinson v.
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