Charles R. Harp and April B. Harp - Page 23

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                    United States, supra at 1245; Marcello v. Commissioner, supra at                                                                                       
                    511; Tokarski v. Commissioner, supra at 77.                                                                                                            
                              Turning now to the parties' dispute as to whether respondent                                                                                 
                    is raising certain matters that are not properly before us, it is                                                                                      
                    significant that petitioners do not dispute, and we find on the                                                                                        
                    instant record, that they were not surprised or prejudiced by                                                                                          
                    respondent's arguments at trial and on brief that petitioners                                                                                          
                    have unreported income for 1989 and 1990 resulting from the                                                                                            
                    deposits of misappropriated funds and for 1990 resulting from the                                                                                      
                    discharge of the outstanding balances of the Kabeiseman loans.                                                                                         
                    See Leahy v. Commissioner, 87 T.C. 56, 65 (1986); Estate of                                                                                            
                    Horvath v. Commissioner, 59 T.C. 551, 555 (1973).  We further                                                                                          
                    find on that record that those matters were before the Court                                                                                           
                    within the meaning of Rule 41(b)(1).  The record before us                                                                                             
                    contains stipulations, joint exhibits, and testimony relevant to                                                                                       
                    those matters, and there is no indication that petitioners had                                                                                         
                    any additional evidence that they did not present at trial with                                                                                        
                    respect thereto.  See Leahy v. Commissioner, supra at 64; Fox                                                                                          
                    Chevrolet, Inc. v. Commissioner, 76 T.C. 708, 735-736 (1981).                                                                                          
                    Moreover, with respect to respondent's argument that petitioners                                                                                       
                    have unreported income for 1989 and 1990 resulting from the                                                                                            
                    deposits of misappropriated funds, petitioners' counsel addressed                                                                                      
                    that argument in his opening statement at trial and elicited                                                                                           
                    relevant testimony with respect to it from both petitioner and                                                                                         
                    Mr. Kabeiseman.  Furthermore, with respect to respondent's                                                                                             




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