Donald R. Martin - Page 15

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                              Respondent contends that Activewear's transfers to Jackson                                                                                   
                    were personal because Activewear was not in the lending business.                                                                                      
                    We disagree.  Respondent cites no authority for this contention.                                                                                       
                              We conclude that the amounts that Jackson owed to Activewear                                                                                 
                    in 1990 and 1991 were not constructive dividends to petitioner.                                                                                        
                    D.        Whether Petitioner Received Income From Security Interests                                                                                   
                              Provided by Jackson                                                                                                                          
                              Jackson assigned four security interests to petitioner and                                                                                   
                    petitioner used the four security interests to secure an $80,000                                                                                       
                    personal loan.  Respondent contends in respondent's pretrial                                                                                           
                    memorandum, opening statement, and posttrial brief that                                                                                                
                    petitioner received $402,600 in income from the four security                                                                                          
                    interests.  We disagree.                                                                                                                               
                              Respondent did not raise the theory that petitioner received                                                                                 
                    income from the security interests in the notice of deficiency.                                                                                        
                    A theory not raised in the notice of deficiency is new matter if                                                                                       
                    it increases the original deficiency or requires the taxpayer to                                                                                       
                    present different evidence.  Rule 142(a); Vetco, Inc. v.                                                                                               
                    Commissioner, 95 T.C. 579, 588 (1990); Achiro v. Commissioner, 77                                                                                      
                    T.C. 881, 890 (1981); Estate of Falese v. Commissioner, 58 T.C.                                                                                        
                    895, 898-899 (1972).  To contest this theory, petitioner would                                                                                         
                    have needed to introduce evidence relating to his consolidated                                                                                         
                    loan from Trust Co. and the four security interests.  The four                                                                                         
                    security interests were not collateral for Activewear's loans to                                                                                       
                    Jackson.  Petitioner was not required to offer that evidence to                                                                                        




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