- 23 -- 23 - 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'sPage: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
Last modified: May 25, 2011