- 195 - 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 arisenPage: Previous 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 Next
Last modified: May 25, 2011