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Finally, petitioner argues that respondent raised a new
matter for 1988 (presumably the attorney's fee theory), and ought
to bear the burden of proof on that matter. See Rule 142(a).
The long and the short of it is that we have sustained
respondent's determination of a deficiency for 1987, not 1988,
and for that year respondent raised no new issue. Petitioner has
not brought to our attention any authority to the contrary.
Petitioner's motion to shift the burden of proof will be
denied. Indeed, even were we to shift the burden of proof to
respondent, that would not help petitioner. On no issue for
which petitioner bears the burden of proof do we have a situation
in which we must look to who bears the burden of proof to resolve
a balance in the evidence. In this case, considering the
evidence before us, it is of no consequence who bears the burden
of proof.
III. Deficiency
We have found that petitioner failed to report an item of
gross income in the amount of $408,318 received in 1987. We base
that finding on our conclusion that, at the time the New York
court entered the Infants Compromise Order (the order), on
June 2, 1987, petitioner had the right to a one-half share of the
attorney's fees awarded by the court, which right petitioner
waived in favor of Hester, his sister. A taxpayer may not avoid
tax by an anticipatory arrangement that assigns income earned by
the taxpayer to another. Lucas v. Earl, 281 U.S. 111, 112
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