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at best, to be in equipoise, a state which is insufficient to
carry petitioner's burden of proof.15
Accordingly, we hold that petitioner has not established by
a preponderance of the evidence that the settlement of his
account with Caesar’s was of a disputed debt. Consequently, we
further hold that petitioner realized income from the
cancellation of indebtedness in the amount of the balance of that
account written off by Caesar’s; to wit, $255,000.16
To reflect the foregoing,
Decision will be entered
for respondent.
15
Although petitioner did introduce the testimony of a witness
besides himself concerning some of the events surrounding the
golf tournament, the record establishes that the extensions of
credit which gave rise to the debt Caesar’s sought to collect
arose before the events of December 1985 concerning which the
witness testified. Moreover, petitioner’s witness did not
testify concerning petitioner’s later dealings with Caesar’s
concerning the collection of the debt.
16
By order, we permitted Caesar’s World, Inc., to file a brief
amicus curiae but limited the arguments in the amicus brief to
the issues presented by the parties at trial and the evidence in
the record. The sole issue presented by petitioner at trial was
whether the settlement of his account with Caesar’s was of a
disputed debt. The amicus brief, however, raises issues not
presented by the parties at trial, and respondent claims to be
surprised and prejudiced by the raising of those issues. We have
disregarded the portions of the amicus brief that do not conform
to our order limiting the arguments therein to those presented by
the parties at trial.
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