John D. Fairchild - Page 11




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          E.   Whether Petitioner Realized $5,369 of Capital Gains From the           
               Sale of Stock in 1993                                                  
               Respondent determined that petitioner is liable for capital            
          gains tax on $5,369 of capital gains that he realized from the              
          sale of stock in 1993.  Petitioner contends that he had a $34,000           
          loss from the sale of stock in 1993 that offset any gain he may             
          have had in that year.  We disagree.                                        
               Petitioner offered no evidence to corroborate his claim that           
          he had a $34,000 loss.  We are not convinced that petitioner had            
          a $34,000 loss from the sale of stock in 1993.                              
               Petitioner contends that proof of his claim that he had                
          losses in 1993 on stock sales can be obtained from his stock                
          brokerage firm.  Petitioner did not identify the stock brokerage            
          firm.  The record is now closed.  Petitioner has not shown that             
          the brokerage records were not available for use at trial or                
          could not have been obtained with reasonable diligence.  Merely             
          alleging that evidence can be obtained is not a sufficient basis            
          to reopen the record.  See Zenith Radio Corp. v. Hazeltine                  
          Research, Inc., 401 U.S. 321, 332-333 (1971); Purex Corp. v.                
          Procter & Gamble Co., 664 F.2d 1105, 1109 (9th Cir. 1981); Mayer            
          v. Higgins, 208 F.2d 781, 783 (2d Cir. 1953); Calcutt v.                    
          Commissioner, 91 T.C. 14, 25 (1988); Dean v. Commissioner, 56               
          T.C. 895, 900 (1971).                                                       
               We conclude that petitioner is liable for capital gains tax            
          on $5,369 that he realized from the sale of stock in 1993.                  





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