Diana L. Gray - Page 5




                                        - 4 -                                         
               The issue concerning the effect of petitioner’s filing                 
          status on the tuition and fees deduction constitutes new matter             
          because it would require the presentation of different evidence.            
          It follows that respondent has the burden of proving that                   
          petitioner was a married individual within the meaning of section           
          7703.  See sec. 222(d)(4).  He has failed to meet that burden.4             
               Because petitioner provided sufficient evidence to refute              
          respondent’s original determination that petitioner had failed to           
          substantiate her tuition expenses, we hold that petitioner is               
          entitled to the tuition and fees deduction for 2004.                        
               To reflect the foregoing,                                              
                                                  Decision will be entered            
                                             under Rule 155.                          













               4 While petitioner made an attempt to show that she was                
          legally separated within the meaning of sec. 7703(a)(2) in 2004,            
          and indeed provided evidence to support that she was living                 
          separately from her husband pursuant to a court order, she could            
          not reasonably have been expected to adequately contest the issue           
          with such inadequate notification.                                          






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