- 11 -
cf. sec. 14a.422A-1, Q&A-1, Temporary Income Tax Regs., 46 Fed.
Reg. 61840 (Dec. 21, 1981);10 see also Xilinx v. Commissioner, 125
T.C. 37, 41 n.5 (2005).
Ms. Kim sold 258 of the 321 shares of Fannie Mae stock that
she acquired under the Fannie Mae ESPP on the respective dates on
which such shares were transferred to her as a result of her
exercising certain stock options under that plan.
On the record before us, we find that petitioners properly
reported the $4,234.94 at issue as compensation income in peti-
tioners’ 2002 return.11
Certain Claimed Long-Term Capital Losses
Petitioners contend that, in addition to the $3,117.40 long-
term capital loss that petitioners claimed in petitioners’ 2002
return, petitioners have $15,949.06 of long-term capital losses
10See also Svoboda v. Commissioner, supra.
11Respondent claimed for the first time in respondent’s
opening brief that, in addition to the $4,234.94 of compensation
income reported in petitioners’ 2002 return with respect to Ms.
Kim’s exercise of the options granted to her under the Fannie Mae
ESPP, petitioners have a $5.34 net short-term capital gain from
the respective sales of certain Fannie Mae stock that Ms. Kim
acquired as a result of such exercise. We conclude that if we
were to consider whether respondent’s claim is correct, peti-
tioners, who were pro sese, would be substantially disadvantaged.
We shall not consider respondent’s claim. See Considine v.
Commissioner, 74 T.C. 955, 964-966 (1980). We note, and respon-
dent agrees, that the $5.34 net short-term gain that respondent
claims petitioners have would not affect the amount of the
deficiency for the year at issue. Assuming arguendo that peti-
tioners have such a net short-term gain, any such gain would
affect the amount of the net capital loss carryover to other
taxable years. See sec. 1212(b)(1).
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