J.J. Zand - Page 115

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          deposits to "Diesel Power's FNCB Geneva account".  The                      
          stipulations state that there were additional checks payable to             
          Diesel Power or to Diesel Power bank accounts in the total amount           
          of $38,569.34.  However, respondent failed to either determine in           
          the notice of deficiency or to assert in the amendment to answer            
          an amount in excess of $22,545.46.  In addition, that figure                
          represents alleged amounts that were reflected on the CTC                   
          receipts journal and does not include funds that were not                   
          recorded there.  Respondent may not assert for the first time on            
          brief that these payments to Diesel Power or Diesel Power bank              
          accounts were income.                                                       
               While the notice of deficiency determined additional income            
          from Clark in 1978 of $36,796.41, the CTC receipts journal shows            
          commissions allocated to Diesel Power of only $15,191.10.  We               
          note that respondent makes no assertions on brief concerning                
          Clark commissions in 1978 other than the latter amount.  Thus,              
          there is no record support for the remaining $21,605.31.  We hold           
          for petitioner with respect to $21,605.31.  With respect to the             
          balance of the $36,796.41 determined in the notice of deficiency,           
          or $15,191.10, there is sufficient evidence to hold for                     
          petitioner as well.  Petitioner no longer owned Diesel Power                
          stock in 1978 because he transferred it to the Khalatbaris in               
          December 1977.  Nor by that point did petitioner control Diesel             
          Power in any meaningful sense.  In 1977 a dispute had arisen                





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