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unfair and prejudicial to petitioners. Nevertheless, because
petitioners represented themselves in these proceedings without
benefit of counsel and because we conclude petitioners implicitly
alleged that respondent’s tax home argument was new matter, we
shall address both arguments.
Respondent discussed petitioner’s status as an employee and
the location of his tax home in the trial memorandum respondent
submitted before the trial. Before the trial, respondent
conceded that petitioner was an independent contractor, and the
only issue remaining to be tried was the location of petitioner’s
tax home. Petitioner was on notice before the trial that
respondent was contending that Alexandria was petitioner’s tax
home. The tax home issue was tried by consent of the parties and
is properly before the Court. See Rule 41(b). Petitioners were
not prejudiced by respondent’s argument that petitioner’s tax
home was in Alexandria.
If the location of petitioner’s tax home is “new matter”
within the meaning of Rule 142(a),6 respondent must bear the
burden of proof. A new theory that is presented to sustain an
6Rule 142 provides in part:
(a) General: (1) The burden of proof shall be
upon the petitioner, except as otherwise provided by
statute or determined by the Court; and except that, in
respect of any new matter, increases in deficiency, and
affirmative defenses, pleaded in the answer, it shall
be upon the respondent. As to affirmative defenses,
see Rule 39.
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