Walton A. Sutherland - Page 16

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               Finally, petitioner argues that respondent raised a new                
          matter for 1988 (presumably the attorney's fee theory), and ought           
          to bear the burden of proof on that matter.  See Rule 142(a).               
          The long and the short of it is that we have sustained                      
          respondent's determination of a deficiency for 1987, not 1988,              
          and for that year respondent raised no new issue.  Petitioner has           
          not brought to our attention any authority to the contrary.                 
               Petitioner's motion to shift the burden of proof will be               
          denied.  Indeed, even were we to shift the burden of proof to               
          respondent, that would not help petitioner.  On no issue for                
          which petitioner bears the burden of proof do we have a situation           
          in which we must look to who bears the burden of proof to resolve           
          a balance in the evidence.  In this case, considering the                   
          evidence before us, it is of no consequence who bears the burden            
          of proof.                                                                   
          III.  Deficiency                                                            
               We have found that petitioner failed to report an item of              
          gross income in the amount of $408,318 received in 1987.  We base           
          that finding on our conclusion that, at the time the New York               
          court entered the Infants Compromise Order (the order), on                  
          June 2, 1987, petitioner had the right to a one-half share of the           
          attorney's fees awarded by the court, which right petitioner                
          waived in favor of Hester, his sister.  A taxpayer may not avoid            
          tax by an anticipatory arrangement that assigns income earned by            
          the taxpayer to another.  Lucas v. Earl, 281 U.S. 111, 112                  




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