Charles R. Harp and April B. Harp - Page 22

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                    Kabeiseman during 1990.                                                                                                                                
                              Petitioners assert on brief (1) that respondent's arguments                                                                                  
                    at trial and on brief that petitioners have unreported income for                                                                                      
                    1989 and 1990 resulting from the deposits of funds misappropri-                                                                                        
                    ated from K & H and Ms. Velilla and for 1990 resulting from the                                                                                        
                    discharge of the outstanding balances of the Kabeiseman loans                                                                                          
                    raise matters that are not properly before the Court and                                                                                               
                    (2) that, assuming arguendo that such matters were properly                                                                                            
                    before the Court, respondent has the burden of proof as to such                                                                                        
                    matters.  To support their assertions, petitioners point out that                                                                                      
                    respondent stated in the notice that certain deposits into                                                                                             
                    petitioners' accounts during the years at issue constitute                                                                                             
                    unreported income for those years from "real estate sales of a                                                                                         
                    general contracting business" or "from contracting", and not from                                                                                      
                    misappropriated funds or the discharge of indebtedness.  Respon-                                                                                       
                    dent disagrees, pointing out, inter alia, that respondent's                                                                                            
                    arguments about which petitioners complain are properly before                                                                                         
                    the Court because petitioners were in no way prejudiced or                                                                                             
                    unfairly surprised by them.                                                                                                                            
                              With respect to the parties' disagreement over whether                                                                                       
                    respondent is raising certain matters not properly before this                                                                                         
                    Court, we note initially that, regardless how we resolve that                                                                                          
                    disagreement, petitioners nonetheless bear the burden of proving                                                                                       
                    that all the deposits at issue are not taxable or that they                                                                                            
                    represent income that they previously reported.  See Calhoun v.                                                                                        




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