Patricia L. Baldwin - Page 13




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          nursing care services rendered to an individual who is receiving            
          disability payments.  Respondent is sustained on this issue.                
               In the alternative, petitioner apparently contends that the            
          payments for the years in issue should be excludable from gross             
          income because of a prior representation from Healthcare’s                  
          predecessor corporation.  Though Healthcare’s predecessor                   
          corporation may have made representations that the payments                 
          received by petitioner were not includable in gross income, the             
          prior representation is irrelevant as to whether the payments are           
          includable in gross income for the years in issue.                          
               Finally, petitioner’s counsel in Petitioner’s Opening Brief            
          contends for the first time that the payments from Healthcare are           
          excludable from petitioner’s gross income for the years in issue            
          as amounts received pursuant to an insurance plan under section             
          105(b).                                                                     
               Respondent contends that because the applicability of                  
          section 105(b) was not raised until Petitioner’s Opening Brief,             
          the record is devoid of any evidence regarding whether or not               
          section 105(b) is applicable in this case.                                  
               The rule that a party may not raise a new issue on brief is            
          not absolute, but it is founded upon the determination as to                
          whether considerations of surprise and prejudice require that a             
          party be protected from having to face a belated confrontation              
          which precludes or limits that party's opportunity to present               






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