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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 determination
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