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would result in unfair surprise to petitioner where it was raised
for the first time on brief. See Aero Rental v. Commissioner, 64
T.C. 331, 338 (1975). Since respondent has not asserted the
higher stipulated figure, we are limited to the $17,943.61
alleged in the amendment to answer. We are similarly limited
with respect to certain of respondent's assertions for 1974 and
1976. With regard to 1974, the notice of deficiency determined
that there was $414,855.46 in unreported "per books" income from
GM. Although the facts indicate that there were payments listed
on the CTC receipts journal attributed to Diesel Power in excess
of that amount, respondent did not assert a higher amount for
that portion of the deficiency. Respondent will be limited to
the asserted amount. For 1976, the total amount attributed to
Diesel Power on the 1976 CTC receipts journal was $1,142,908.40.
The notice of deficiency, however, determined "per books
unreported" income of $1,112,550.51. Respondent will be limited
to assertions for the latter amount.
Respondent contends that all GM payments to the Zand FNCB
London account and all GM payments attributed to Diesel Power on
the CTC receipts journal should have been included in
petitioner's income for 1973 through 1977. Petitioner, on the
other hand, claims that Diesel Power was GM's Iranian distributor
and that the payments to the Zand FNCB London account during 1973
through 1977 belonged only to Diesel Power. We disagree with
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