Charles R. Harp and April B. Harp - Page 28

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                    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...)                                   




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