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in 1992 is not in the record), and $103,175.05 as of 1992 in
connection with the so-called Emerald Bay matter. The record
shows that Lurie & Zepeda claimed additional amounts (exceeding
the entire United Ready Mixed settlement proceeds) for
contingency fees in the United Ready Mixed matter and hourly and
contingency fees in numerous other matters. The specific amounts
owing for each matter as of the end of 1992 and the nature of
each of the matters were not established at trial.
Respondent contends that we should allow a deduction only
for the fees petitioner proved at trial would have been
deductible if paid without contest. Respondent argues that
petitioner failed to establish an entitlement to a deduction
exceeding the hourly fees and costs claimed by Lurie & Zepeda as
of November 30, 1992, in connection with the United Ready Mixed
matter ($348,114.21).
We agree with respondent that the record is incomplete.
However, petitioner does not bear the burden of proof here.
Respondent created this issue by withdrawing his trial concession
that the United Ready Mixed settlement proceeds are not taxable
in 1992. As a result of respondent’s change of position after
the completion of the trial, petitioner did not have a full and
fair opportunity to introduce evidence to establish the
deductibility of the amounts claimed by Lurie & Zepeda. It is
appropriate for respondent to bear the burden of proof on new
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