Diana L. Gray - Page 4




                                        - 3 -                                         
          Commissioner, 112 T.C. 183, 191 (1999); Wayne Bolt & Nut Co. v.             
          Commissioner, 93 T.C. 500, 507 (1989).                                      
               In the notice of deficiency, respondent’s basis for                    
          disallowing petitioner’s 2004 tuition and fees deduction was that           
          petitioner “did not furnish information needed to support the               
          claimed deduction.”  At trial, when the Court asked respondent’s            
          counsel what information petitioner needed to support the tuition           
          and fees deduction, respondent replied: “I think it was proving             
          that they were qualified tuition expenses, which the Respondent             
          no longer disputes.”                                                        
               Respondent’s position at trial was that petitioner must also           
          prove that she was entitled to single, as opposed to married                
          filing separately, filing status in order to be entitled to the             
          tuition and fees deduction.  See sec. 222(d)(4).  The notice of             
          deficiency does not provide this as a reason for disallowing                
          petitioner’s tuition and fees deduction.  Respondent did not file           
          an answer to the petition.3  Respondent first argued that a                 
          married filing separately filing status caused petitioner to be             
          ineligible for a tuition and fees deduction when the case was               
          called for trial.                                                           


               3 Rule 173(b), as in effect for small tax cases in which the           
          petition was filed before Mar. 14, 2007, provides that no answer            
          is required to be filed, except where there is an issue on which            
          the Commissioner bears the burden of proof or where the Court               
          otherwise directs.                                                          







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