- 16 - In her closing statement after the trial in this case, respondent's counsel stated the position of respondent regarding the investment interest issue presented here, as follows: The issue as to the interest paid -- there has been stipulation that the interest paid to correct the prohibited transaction in excess of $268,000 -- it was paid in 1991. The facts are rather clear. I believe that it is the Petitioner's argument -- I don't believe there is any discussion about the facts -- that it is Peti- tioner's legal argument that Code Section 72(p)(3) simply does not apply to the repayment of interest in 1991. That is a legal issue that the Respondent will be happy to argue, but the facts on that issue are set forth and clear. [Emphasis added.] We construe the stipulation of respondent's counsel during Mr. Harbison's direct testimony and her closing statement with respect to the investment interest issue to mean that respondent does not dispute (1) that the proceeds of the 1982 plan loan were invested from June 4, 1982, when that loan was made, through October 4, 1991, when petitioner made the 1991 principal payment and the 1991 interest payment, and (2) that, consequently, the 1982 plan loan proceeds are traceable to an investment expendi- ture throughout that period. On the record before us, we shall not allow respondent to abandon on brief the position taken at trial that the $130,000 proceeds of the 1982 plan loan were "invested" and that the facts regarding the investment interest issue are "clear". Consequently, we reject respondent's argumentPage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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