Herbert L. Whitehead and Jennifer L. Whitehead - Page 35




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          respective uses of certain Burien Nissan automobiles during the             
          years at issue.30  Before turning to each of those contentions,             
          we shall summarize the pertinent law.                                       
               In general, gross income includes compensation for services.           
          Sec. 61(a)(1).  When services are paid for in property or in                
          exchange for other services, the fair market value of such                  
          property or other services must be included in income as compen-            

               30In petitioners’ answering brief, petitioners contend that            
          respondent takes a new position on brief with respect to both               
          petitioners’ respective uses of certain Burien Nissan automobiles           
          during the years at issue and the value of such uses (respon-               
          dent’s position on brief).  With respect to respondent’s position           
          on brief regarding petitioners’ respective uses of certain Burien           
          Nissan automobiles during the years at issue, petitioners con-              
          tend:  “In its Brief, respondent now takes the completely new               
          position that none of the use of the vehicles used by the peti-             
          tioners was business related.”  We disagree.  Respondent’s                  
          position on brief regarding petitioners’ respective uses of                 
          certain Burien Nissan automobiles during the years at issue is              
          the same as respondent’s position in the notice, i.e.,                      
          (1) petitioners did not provide adequate records or other docu-             
          mentation to substantiate any business use of those automobiles             
          during those years; and (2) petitioners did not show that Ms.               
          Whitehead’s use of certain Burien Nissan automobiles during the             
          years at issue constituted compensation to her by Burien Nissan             
          for certain services that she performed during those years.  With           
          respect to respondent’s position on brief regarding the value of            
          petitioners’ respective uses of certain Burien Nissan automobiles           
          during the years at issue, petitioners contend:  “Respondent then           
          proceeds to use some assumptions to compute what it feels should            
          be taxable income to the petitioners.”  Respondent’s position on            
          brief regarding the value of petitioners’ respective uses of                
          certain Burien Nissan automobiles during the years at issue is              
          the same as respondent’s position in the notice, i.e., the                  
          aggregate value of petitioners’ respective uses of those automo-            
          biles during each year at issue was $15,000.  See supra note 18.            
          On the record before us, we find that respondent’s position on              
          brief does not differ from respondent’s determinations in the               
          notice or respondent’s position at trial.  We find on that record           
          that respondent’s position on brief is not a new position.                  





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