- 39 - T.C. 226, 347 (1991). Moreover, under Rule 142(a), respondent would bear the burden of proof as to the issue whether the $10,000 is sales income. Even if we permitted respondent to raise this new theory, he would not prevail upon it because he cannot carry his burden. The record shows that Mr. S. ordered tapes from petitioner because he could get a “better rate” than elsewhere. He wrote her checks totaling $10,000. One of those checks, for $3,000, was returned unpaid. We believe that, if petitioner provided a better rate than other sellers, her loss of $3,000 on the sale likely prevented her from earning any profit on the transactions. In any event, respondent has not shown otherwise. We accordingly do not sustain any portion of respondent’s determination that petitioner had $18,500 in unreported income from Mr. S. in 1989. Respondent determined that petitioner had unreported income of $5,000 in 1989 from a loan transaction with an individual named Howard S. On brief, respondent argues that this was a “fraudulent” loan transaction in that petitioner had no intention of repaying, making the original loan amount income to her in 1989. We have found that Howard S. lent petitioner $5,000 in 1989 and that by the first quarter of 1991 she had repaid him $1,300. Mr. S. acknowledged as much in early 1991 in an invoice that he admits initialing. He subsequently sued petitioner in AugustPage: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Next
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