- 22 - that he failed to report the income, not to evade tax, but because he viewed the payment as a short-term capital gain which he intended to offset by capital losses from his interest in Regent when such losses were realized. The Court discounts this explanation as an afterthought. See Gajewski v. Commissioner, 67 T.C. at 202. Petitioner had at least two clear opportunities to offer this explanation to Clement before petitioners retained counsel, yet he said nothing. Even if we did not regard petitioner's explanation as a recent fabrication, we find highly improbable his testimony that he viewed the income received from Sanrio as capital, rather than ordinary, in nature. Although his wife usually engaged in brokerage sales for Sand Hill, petitioner was familiar with real estate practices. The evidence overwhelmingly suggests that Sanrio viewed petitioner merely as an agent, and that petitioner knew of his role as intermediary. Petitioner wrote a letter to Sanrio before the Agreement was signed describing his fee. Moreover, Sanrio reimbursed petitioner for his out-of-pocket expenses. Petitioner signed the agreement, rather than Sanrio, due to the seller's antipathy toward Sanrio. Cf. Solomon v. Commissioner, 732 F.2d at 1461. Consequently, petitioner must have known that the $840,000 was a commission and therefore ordinary income against which, he was aware, capital losses could not be applied. His explanation is incongruous with these circumstances.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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