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relies solely and entirely on the presumption of correctness that
normally attaches to a notice of deficiency.
Finally, respondent has not yet been given an opportunity to
present evidence supporting his determinations. Petitioners’
assertion that respondent is merely resting on the presumption of
correctness is therefore premature, and petitioners’ reliance on
Weimerskirch is misplaced.
Petitioners also rely on Shea v. Commissioner, supra, in
support of their motion to shift the burden of proof. In Shea,
the Commissioner issued a notice of deficiency in which he
changed a California-resident taxpayer’s filing status from
married filing jointly to married filing separately yet
determined an amount of unreported income without making any
adjustment for California’s community property law. Had that law
been considered, unless an exception under section 66(b) applied,
the taxpayer would have been required to report and be taxed on
only one-half of the taxpayer’s income from a business he
conducted while married. The notice of deficiency in Shea did
not refer to California community property law, any exceptions to
that law, or any facts that might support such exceptions.
Although the parties in Shea agreed that section 66(b)
authorizes the Commissioner to disallow the benefits of community
property law to a taxpayer under certain circumstances, the
taxpayer argued that because the Commissioner made no
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