- 30 -
however, as it would put petitioner at a disadvantage, since it
tried and argued the case in light of the concession.”); Cogan v.
Commissioner, T.C. Memo. 1980-328 (“Petitioners had every right
to rely on the concession of respondent's counsel at trial and we
will not permit respondent to withdraw his concession or attempt
to modify it after trial.”).
In the cases at hand, respondent took the position that
petitioner did not have receipt of the settlement proceeds in
1992 only after the trial commenced. In the notice of
deficiency, respondent took the position that the proceeds were
taxable in 1992. We therefore do not elect to hold respondent to
his trial concession. However, we should ameliorate any harm to
petitioner by requiring respondent to bear the burden of proving
all factual issues arising out of respondent’s change in
position. See Rule 142(a)(1) (burden of proof on petitioner
“except as otherwise provided by statute or determined by the
Court”).
We agree with respondent that the settlement proceeds paid
by United Ready Mixed in 1992 constitute income to petitioner in
1992. There were no restrictions placed by United Ready Mixed on
petitioner’s use of the funds, and the payment was made to
petitioner’s attorney’s trust account at petitioner’s direction
pursuant to the settlement agreement. Petitioner’s counsel was
acting as either petitioner’s agent or petitioner’s creditor in
Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: May 25, 2011