- 27 - ability to prepare its case. Of key importance in evaluating the existence of prejudice is the amount of surprise and the need for additional evidence on behalf of the party opposed to the new position. [Citations omitted.] See also Sundstrand Corp. v. Commissioner, 96 T.C. 226, 346-347 (1991), where we observed that we have refused to consider a new theory raised by the Commissioner where consideration of the theory would prejudice the taxpayer. In Sundstrand Corp. we concluded that the taxpayer was prejudiced because it would have presented additional evidence at trial if it had known of the new theory in advance. In the case at hand, respondent’s Motion to Consolidate informed petitioner, more than 8 months before trial, of respondent’s position that Universal was a sham and that individual items of income were taxed to petitioner personally. More than 7 months before trial, respondent’s Requests for Admission sought information that once again put petitioner on notice of respondent’s position that Universal was a sham. In addition, almost 2 months prior to trial, respondent’s motion to compel informed petitioners: the primary issue is whether Universal Trust, created by petitioners Ghavami and Johnston; should be disregarded for tax purposes due to its lack of economic substance and attempted assignment of income with the result that the net income reported by the trust, is properly reported by petitioners Ghavami and Johnston. Finally, on June 19, 2000, the Court discussed the assignment of income, sham, and grantor trust theories with petitioner. ThePage: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
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