- 28 -- 28 - bear the burden of proving that the deposits into their accounts during 1989 and 1990 do not constitute unreported income. Re- spondent conceded at the conclusion of the trial herein that petitioners had satisfied that burden with respect to the depos- its of the Kabeiseman loans during 1989. Respondent, however, advanced as an alternative argument in her opening statement and as the sole argument at the conclusion of the trial herein and on brief a new theory as to why petitioners have $19,310.20 of unreported income for 1990, viz., unreported income resulting from the discharge or forgiveness by Mr. Kabeiseman during that year of the outstanding balances of the Kabeiseman loans (viz., $19,310.20). That new theory does not merely serve to develop respondent's theory in the notice that, under the bank deposits method, all money deposited into petitioners' accounts during 1990 constitutes unreported income for that year (except money so deposited that respondent knows (1) is not taxable or (2) is income that petitioners previously reported in their return for that year). Accordingly, on the record before us, we sustain petitioners' contention that respondent has raised a matter as to which she bears the burden of proof in arguing that petitioners have unreported income for 1990 resulting from the discharge of the outstanding balances of the Kabeiseman loans.17 17 We note that on the record before us our findings and conclu- sions with respect to respondent's argument that petitioners have unreported income for 1990 resulting from the discharge of the (continued...)Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
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