1 Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

 T.C. Summary Opinion 2007-121

UNITED STATES TAX COURT

DIANA L. GRAY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10520-06S. Filed July 18, 2007.

Diana L. Gray, pro se.

Thomas M. Rath, for respondent.

RUWE, Judge: This case was heard pursuant to the provisions

of section 74631 of the Internal Revenue Code in effect when the

petition was filed. Pursuant to section 7463(b), the decision to 
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2 The parties agreed that petitioner is entitled to itemized

deductions for charitable contributions of $1,040 in both 2003

and 2004. Petitioner did not contest the adjustments in the

notice of deficiency not discussed in this opinion. 

be entered is not reviewable by any other court, and this opinion

shall not be treated as precedent for any other case.

Respondent determined deficiencies in petitioner’s 2003 and

2004 Federal income taxes of $1,974 and $2,000, respectively. 

After concessions,2 the only issue remaining is whether

petitioner is entitled to a tuition and fees deduction of $4,000

in 2004.

Petitioner submitted a Form 1098-T, Tuition Statement,

demonstrating that she was billed for qualified tuition and

related expenses of $4,007 in 2004. On her 2004 Federal income

tax return, petitioner deducted $4,000 for tuition and fees

expenses. Respondent concedes that petitioner is entitled to the

deduction for tuition and fees if the Court finds that petitioner

is entitled to single filing status.

Discussion

Generally, petitioner bears the burden of proof. Rule

142(a). Respondent, however, bears the burden of proof with

respect to any new matter. Id. An assertion is treated as a new

matter when it either increases the original deficiency or

requires the presentation of different evidence. Shea v.
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3 Rule 173(b), as in effect for small tax cases in which the

petition was filed before Mar. 14, 2007, provides that no answer

is required to be filed, except where there is an issue on which

the Commissioner bears the burden of proof or where the Court

otherwise directs. 

Commissioner, 112 T.C. 183, 191 (1999); Wayne Bolt & Nut Co. v.

Commissioner, 93 T.C. 500, 507 (1989).

In the notice of deficiency, respondent’s basis for

disallowing petitioner’s 2004 tuition and fees deduction was that

petitioner “did not furnish information needed to support the

claimed deduction.” At trial, when the Court asked respondent’s

counsel what information petitioner needed to support the tuition

and fees deduction, respondent replied: “I think it was proving

that they were qualified tuition expenses, which the Respondent

no longer disputes.” 

Respondent’s position at trial was that petitioner must also

prove that she was entitled to single, as opposed to married

filing separately, filing status in order to be entitled to the

tuition and fees deduction. See sec. 222(d)(4). The notice of

deficiency does not provide this as a reason for disallowing

petitioner’s tuition and fees deduction. Respondent did not file

an answer to the petition.3 Respondent first argued that a

married filing separately filing status caused petitioner to be

ineligible for a tuition and fees deduction when the case was

called for trial. 
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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.

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.