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nursing care services rendered to an individual who is receiving
disability payments. Respondent is sustained on this issue.
In the alternative, petitioner apparently contends that the
payments for the years in issue should be excludable from gross
income because of a prior representation from Healthcare’s
predecessor corporation. Though Healthcare’s predecessor
corporation may have made representations that the payments
received by petitioner were not includable in gross income, the
prior representation is irrelevant as to whether the payments are
includable in gross income for the years in issue.
Finally, petitioner’s counsel in Petitioner’s Opening Brief
contends for the first time that the payments from Healthcare are
excludable from petitioner’s gross income for the years in issue
as amounts received pursuant to an insurance plan under section
105(b).
Respondent contends that because the applicability of
section 105(b) was not raised until Petitioner’s Opening Brief,
the record is devoid of any evidence regarding whether or not
section 105(b) is applicable in this case.
The rule that a party may not raise a new issue on brief is
not absolute, but it is founded upon the determination as to
whether considerations of surprise and prejudice require that a
party be protected from having to face a belated confrontation
which precludes or limits that party's opportunity to present
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