Robert D. Grossman, Jr. - Page 90

                                       - 33 -                                         
               During the years in issue, Markette had several American               
          Express credit card accounts on which credit cards were issued in           
          petitioner’s name and in Betsy’s name.  Petitioner and Betsy                


               8(...continued)                                                        
          follows:                                                                    
                    I had stipulated that the nonhearsay purpose for which            
               I was offering those returns was to prove, I believe I said,           
               salary and dividends.  I would like to modify that to cover            
               all compensation and dividends.                                        
                    The Revenue agent, in preparing her summary, included             
               other things in compensation besides salary, to include                
               particularly contributions to pension and profit sharing               
               plans.  Those also would be nonhearsay purposes.  We don’t             
               care if they are true or not; we just want to show what was            
               reported to the IRS.                                                   
          The Court accepted the expansion.  The expansion clearly did not            
          relate to deductions of travel expenses.                                    
               If respondent’s counsel overlooked the travel expenses                 
          matter before the instant cases were submitted and later                    
          concluded that it was important to secure a further expansion,              
          then respondent’s counsel should have either (1) secured                    
          petitioner’s agreement or (2) moved before opening briefs were              
          due to reopen the record to expand the limited admission.  We do            
          not believe it is appropriate to allow petitioner to write and              
          file his opening brief on the assumption that these exhibits were           
          offered and received only for a specified limited purpose and,              
          afterward, learn that these exhibits are being used for another             
          purpose.  True, petitioner has (and used) the opportunity to                
          respond on answering brief.  However, if the Court were to accede           
          to respondent’s request in this situation, then petitioner would            
          have been deprived of the opportunity to use the expanded                   
          admission in crafting his own proposed findings.                            
               There may be extraordinary circumstances under which such a            
          delay in presenting the matter may be excusable.  We do not                 
          decide that hypothetical; in the instant cases, we do not reach             
          the question of what we would have ruled if respondent had                  
          presented the matter seasonably.  We shall expand the limited               
          admission.  Exhibits Q, R, and S were admitted at trial for                 
          limited purposes and, as so limited, do not support respondent’s            
          proposed finding.                                                           




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