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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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