Howard Dysle - Page 11

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          this is a new issue that was not raised at the hearing, and                 
          therefore it is not subject to review by the Court pursuant to              
          Magana v. Commissioner, 118 T.C. 488 (2002).  We disagree.                  
          Petitioner raised this issue at the hearing, and it is properly             
          before the Court.                                                           
               Petitioner presented no documentary evidence to support his            
          testimony that he submitted to the IRS the alleged checks that he           
          claims were not applied to his account.2  The Court is not                  
          required to accept petitioner’s unsubstantiated testimony.  See             
          Wood v. Commissioner, supra.  As stated supra, we found                     
          petitioner’s testimony to be general, vague, conclusory, and/or             
          questionable in certain material respects.  Under the                       
          circumstances presented here, we are not required to, and                   
          generally do not, rely on petitioner’s testimony to conclude that           
          he submitted any of these three checks to respondent or that                
          respondent failed to apply these amounts to petitioner’s account.           
          See Lerch v. Commissioner, supra; Geiger v. Commissioner, supra;            
          Tokarski v. Commissioner, supra.                                            



               2  Petitioner attached to his posttrial brief documents to             
          support his claim that payments were not appropriately applied to           
          his account.  Evidence must be submitted at trial; documents                
          attached to briefs and statements therein are not evidence.  Rule           
          143(b); Lombard v. Commissioner, T.C. Memo. 1994-154 n.3, affd.             
          without published opinion 57 F.3d 1066 (4th Cir. 1995); Wicker v.           
          Commissioner, T.C. Memo. 1993-431 n.15, affd. without published             
          opinion 50 F.3d 12 (8th Cir. 1995).  Accordingly, we disregard              
          these documents in reaching our decision.                                   





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