Kevin R. Johnston - Page 27



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               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.  The              





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