Larry J. and Sherilyn Wadsworth - Page 21

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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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