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during the years at issue.4 Indeed, the only determination of
respondent regarding the Modoc property that was in the record in
this case at the time we entered the decision is that set forth
in the notice, viz., petitioners received a constructive dividend
from EOCC during each of the years 1989 and 1990 in an amount
equal to the fair rental value of the Modoc property which
respondent determined was owned by EOCC and in which petitioners
lived rent free.
Moreover, during the time this case was pending before the
Court the parties did not file a stipulation of settled issues or
other similar document showing the agreement of the parties with
respect to each of respondent's determinations in the notice.
Consequently, at the time the Court entered the decision in this
case it was unaware of what that agreement was. Thus, the Court
did not enter its decision in this case based on respondent's
determination in the notice that petitioners received construc-
tive dividends for 1989 and 1990 because they lived on the Modoc
4 Nor do we read the District Court's order as establishing that
the United States contended in defendant's motion in the District
Court case that petitioners were the owners of the Modoc property
during the years at issue in petitioners' case before this Court.
As we read the District Court's order, the United States con-
tended, and the District Court found, that the foundation, which
was not even created until after the years at issue in the
instant case (i.e., on Sept. 16, 1994) and which purportedly held
title to the Modoc property since around Oct. or Nov. 1995, was
both a nominee of petitioners and a sham entity and that, conse-
quently, the levy on the Modoc property, which the IRS issued on
Sept. 9, 1996, was valid.
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