-36-
argument on this issue on brief is that "petitioners stole
$568,156, both concealing and misrepresenting their use of these
funds to Kortava, and failing to report most of their
embezzlement on their returns."
In the notice of deficiency and at trial, respondent
maintained the position that petitioners had failed to report
income received from foreign sources. The record does not
indicate that petitioners misunderstood respondent's position.
In this instance, the evidence that is required to disprove the
determination in the notice of deficiency is not different than
that required to meet the position taken by respondent at trial.
Cf. Estate of Falese v. Commissioner, 58 T.C. 895, 899 (1972).
Respondent has not raised a new matter. Respondent has proposed
a new theory, merely clarifying or developing the original
determination. Respondent does not bear the burden of proof on a
new theory. See Estate of Jayne v. Commissioner, 61 T.C. 744,
748-749 (1974).
Petitioners do not contest that Kortava transferred funds in
the above-stated amounts to petitioners during 1990 and 1991.
Petitioners' position is that their mere receipt of the funds as
agents of Kortava does not produce taxable income.
Gross income includes all "accessions to wealth, clearly
realized, and over which the taxpayers have complete dominion".
James v. United States, 366 U.S. 213, 219 (1961) (quoting
Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955)).
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