Alan G. Bone and Kathleen A. Bone - Page 14




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          Petitioners have not shown that respondent’s determination is               
          without substance or that it would be appropriate to go behind              
          the notices of deficiency.  Petitioners’ attempt to discredit               
          respondent’s agent appears to be a detour or distraction from               
          petitioners’ failure to present facts and/or law that would show            
          their entitlement to the claimed items.                                     
               On the basis of the foregoing, we hold that petitioners have           
          failed to show that they are entitled to deduct the expenses paid           
          by AJCS on behalf of the affiliates.  Accordingly, we sustain               
          respondent’s determination that AJCS is not entitled to deduct              
          expenses of $2,261,555 that were expenses of the four newly                 
          formed affiliates.                                                          
          II. Did AJCS Erroneously Overstate Its Income?                              
               Next, we consider petitioners’ contention that AJCS                    
          overstated its income by $2,680,500.  On brief and for the first            
          time in the course of the trial, petitioners raised an issue as             
          to whether AJCS’s 1993 income was overstated because the four               
          affiliates may have mistakenly reported the same income.10                  
          Although petitioners included an allegation on this point in                
          their petitions, it was not addressed in the opening statement at           
          trial and, accordingly, was not tried by consent and was untimely           

               10 We must make assumptions because this matter was not                
          factually developed.  We assume that petitioners’ argument is               
          based on their factual assumption that contract gross incomes               
          reported by AJCS for periods prior to transfer were also reported           
          by the affiliates.                                                          





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