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incomplete because of the need to prepare a draft stipulation of
facts for trial. This circumstance indicates to us that the
change in theory was not fully considered when it was put forward
and was hastily made when the weakness of respondent's initial
arguments was exposed. The circumstances of the change suggest
the presence of an unreasonable "'litigate now, think later'
mentality" on respondent's part. Beaty v. United States, 937
F.2d 288, 293 (6th Cir. 1991).
The facts in the instant case support petitioners'
contention that the payment in question was a guaranteed payment;
they do not support respondent's contention that petitioner had
adopted the cash method of accounting for the payment. The
record establishes that the payment was not included in
petitioner's income when the partnership accrued it due to an
oversight on the part of the accountants for the partnership and
petitioner; it does not suggest that petitioner consciously
adopted a cash method of accounting for the payment. Although
respondent relies on the circumstances surrounding the failure to
report the payment in the years when it was accrued by the
partnership to show the reasonableness of the accounting method
theory, respondent has not cited any authority that supports the
position that a taxpayer could be held to have adopted a method
of accounting given the circumstances presented in the instant
case.
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