Robert Emmett Robertson, III - Page 6




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               Respondent contends that petitioner has failed to carry his            
          burden of proof and that the matters are not properly before the            
          Court.                                                                      
               We agree with respondent’s conclusion and in part with                 
          respondent’s analysis.                                                      
               Firstly, at trial we repeatedly asked petitioner whether the           
          change in characterization of the income would make any                     
          difference to the decision to be entered for any of the years in            
          the instant case.  Neither at trial nor on brief did petitioner             
          direct our attention to any way in which the decision would be              
          affected, and the Court has not found in the record any way in              
          which the decision would be affected, except to possibly increase           
          a deficiency because of self-employment tax.  Under these                   
          circumstances, we decline to determine in the instant case                  
          whether the income items are properly Schedule C items.  See                
          Chevron Corp. v. Commissioner, 98 T.C. 590 (1992); LTV Corp. v.             
          Commissioner, 64 T.C. 589 (1975).                                           
               Secondly, petitioner has not directed our attention to, and            
          we have not found, any evidence in the record from which we might           
          fairly conclude that it is more likely than not that either of              
          petitioner’s Fidelity Investment income items for 1981 and 1982             
          is income from a trade or business then carried on by petitioner.           
               Thirdly, the parties’ stipulations explicitly provide that             
          the 1981 income item reported by petitioner as Schedule C gross             






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