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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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Last modified: November 10, 2007