- 21 - determination in the notice of deficiency with regard to community property law or section 66(b), the Commissioner should bear the burden of proof with regard to his reliance on section 66(b) because it was a “new matter” within the meaning of Rule 142(a). The Commissioner argued that invocation of section 66(b) was necessarily implicit in the notice of deficiency. In agreeing with the taxpayer, this Court noted that the notice of deficiency at issue made “absolutely no mention of community property law, section 66(b), or facts which would allow respondent to invoke section 66(b).” Shea v. Commissioner, supra at 191. This Court also noted that Respondent failed to offer any evidence that indicated that respondent considered the application of community property law or section 66(b) in making his determination. In short, it appears to us that respondent gave no thought to community property law or section 66(b) when the notice of deficiency was prepared. Respondent’s apparent failure to even consider community property law or section 66(b) in making his deficiency determination supports our conclusion that section 66(b) was not implicit in the notice of deficiency. However, even if respondent’s agents had considered such matters, it does not follow that they were “necessarily implicit” in the notice of deficiency. The objective language in the notice of deficiency remains the controlling factor. * * * there is nothing in the notice of deficiency that makes section 66(b) “necessarily implicit”. Id. at 192 (fn. refs. omitted). The notice of deficiency petitioners received is not analogous to the notice of deficiency in Shea. The notice of deficiency in Shea made no reference to the alleged determinationPage: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: May 25, 2011