Dale A. Rinehart and Jeana L. Yeager, f.k.a. Jeana L. Rinehart, et al. - Page 5




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          Generally, we will not consider issues that are raised for the              
          first time at trial or on brief.  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).  Accordingly, we shall            
          not consider whether to place the burden of proof upon                      
          respondent.7                                                                
               B. General Rule                                                        
               Generally, a taxpayer must recognize income from the                   
          discharge of indebtedness.  Sec. 61(a)(12); United States v.                
          Kirby Lumber Co., 284 U.S. 1 (1931).  The documentary evidence in           
          addition to the Form 1099-C and the testimony of a representative           
          of Advanta established:  (1) Ms. Yeager borrowed $75,000 from               
          Advanta; (2) she did not repay the $75,000 loan; (3) Advanta                
          foreclosed on the property securing the $75,000 loan; (4) Advanta           
          sold the property securing the $75,000 loan; (5) Advanta                    
          discharged the indebtedness of Mr. Babcock and Ms. Yeager; and              
          (6) Advanta issued Ms. Yeager a Form 1099-C reporting the amount            
          of canceled debt as $21,975.  On the basis of the evidence in the           
          record, we conclude that in 1995 Ms. Yeager had $21,975 of COD              
          income.                                                                     



               7  The resolution of whether Ms. Yeager had COD income does            
          not depend on which party has the burden of proof.  We resolve              
          this issue on the basis of a preponderance of evidence in the               
          record.                                                                     






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