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Petitioner, in essence, is urging a different theory upon which
his liability as to the income in question for 1988, 1989, and
1990 should be determined. Petitioner made the same argument in
the Court of Appeals as to his 1987 tax year, and that argument
was addressed as follows:
Kochansky further argues that under Idaho's community
property law, Idaho Code 32-906, Carol had a community
property interest in the contingent fee at the time of the
divorce. Upon divorce, that interest became her sole and
separate property, he argues, and therefore she is solely
responsible for paying tax on her portion of the malpractice
contingency fee. We decline to consider this argument
because Kochansky did not raise it in the Tax Court and
because the necessary facts to support the existence of a
community property interest have not been developed. See
United States v. Kimball, 896 F.2d 1218, 1219 (9th Cir.
1990) ("As a general rule, we will not consider an issue
raised for the first time on appeal."), vacated in part on
other grounds, 925 F.2d 356 (9th Cir. 1991). [Kochansky v.
Commissioner, 92 F.3d at 959.]
The petition in the instant case contains no allegations
that the income at issue in this case constituted community
property income. In an amended petition that was subsequently
filed, no allegations were made with respect to the income being
community property income. No motions have been filed by
petitioner for leave to file an amended petition in order to
allege the character of the income at issue as community property
income. The stipulation filed by the parties states, in
pertinent part:
9. The parties hereby agree to be bound to the final
outcome of the case of Kochansky v. Commissioner, T.C. Memo.
94-160 (Appeal to 9th Circuit Court of Appeals pending) as
to the deficiencies and additions to tax raised in the
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