Steven K. Han - Page 104





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               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 be               






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