- 95 - This Court generally will not consider issues that are raised for the first time on brief, particularly where the belated claim would prejudice a party. Rules 34(b)(4), 41(a) and (b); Foil v. Commissioner, 92 T.C. 376, 418 (1989), affd. 920 F.2d 1196 (5th Cir. 1990); Markwardt v. Commissioner, 64 T.C. 989, 997 (1975); see also Toyota Town, Inc. v. Commissioner, T.C. Memo. 2000-40, affd. sub nom. Bob Wondries Motors, Inc. v. Commissioner, 268 F.3d 1156 (9th Cir. 2001). Leave to amend a pleading should be given, however, “when justice so requires”. Rule 41(a). We note first that we have concluded herein that petitioner is effectively not the owner of the dividends respondent attributed to him from the Sam Han and Chung No. 1 accounts. These two accounts contain $54,372 of the $67,193 in margin interest for which petitioner seeks an offset. Moreover, the evidence adduced by respondent in this case demonstrates that petitioner had additional unreported income of $85,688 in 1988 that respondent nonetheless did not use as a basis to amend his pleadings to assert an increased deficiency. In these circumstances, we conclude that respondent would be prejudiced if petitioner were permitted to raise for the first time on brief his entitlement to margin interest deductions and capital losses. Also, the belated income offsets to which petitioner might bePage: Previous 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 Next
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