Richard W. Kochansky and Monica L. Miller, f.k.a. Monica L. Kochansky - Page 6

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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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