Leon L. Sicard and Eleanor Sicard - Page 9

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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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