- 7 -
in the notice of deficiency was no longer in issue. Rather,
petitioner reasonably believed that unreported income of $11,438
was the only amount in controversy. Respondent led petitioner
and this Court to believe that respondent had conceded that
petitioner did not earn $30,764 in self-employment income in 1993
as determined in the notice of deficiency. At trial, respondent
argued only that petitioner earned $11,438 from her work as a
paralegal. At the time of trial, petitioner did not have notice
that respondent would assert the entire 1993 deficiency as
determined in the deficiency notice. During trial, petitioner
was not given notice that she needed to produce evidence that she
did not receive $30,764 in self-employment income.5 Under these
facts, we will not permit the revival of the abandoned portion of
the 1993 deficiency on brief. Reassertion of more than the
$11,438 amount of self-employment income on brief would result in
petitioner's having been prejudiced in her ability to present
5 On brief, however, respondent continues to rely on the
1992 bank deposits to assert the $30,764 self-employment income
in 1993. Respondent relied on the bank deposits in 1992, which
was used as the base year for the CPI, to determine petitioner's
1993 income. As respondent has conceded the base year
deficiency, we find that respondent has failed to produce
evidence to support the deficiency determination for 1993 based
on the CPI. Based on the concessions by respondent, petitioner
has presented sufficient evidence that she did not earn $30,764
in self-employment income during 1993, requiring respondent to
come forward with evidence. See Senter v. Commissioner, T.C.
Memo. 1995-311. Accordingly, we find that petitioner has met her
burden of proof and that she did not have self-employment income
in excess of $11,438.
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