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Because the resolution of the issue of the proper method
used to allocate COD income is a matter that would require the
Court to consider new evidence, i.e., the terms of the closing
agreement and spreadsheet, not presented at the original
proceeding, we would not consider the issue at the Rule 155
proceeding. See Bankers Pocahontas Coal Co. v. Burnet, 287 U.S.
308, 313 (1932) (prohibiting taxpayer from raising new issue in
postdecision tax deficiency proceeding: “It is not shown that
the evidence tendered was not available to the petitioner in
ample time to present it before the Board had made and filed its
findings of fact and opinion.”); Paccar, Inc. v. Commissioner,
849 F.2d 393, 400 (9th Cir. 1988) (“a further trial is exactly
what is not permitted under Rule 155”), affg. 85 T.C. 754 (1985);
Cloes v. Commissioner, supra at 937.
Issue 2. Whether Downward Adjustments to Petitioners’ Income
Listed in Respondent’s Form 4549A-CG Were Omitted From
Respondent’s Rule 155 Computation
Petitioners argue the adjustment items were not reflected in
respondent’s Rule 155 computation.
Respondent took the adjustment items into consideration in
his Rule 155 computation. In issuing the notice of deficiency,
respondent reduced petitioners’ taxable income by $1,199 from
$254,590 reported on petitioners’ 1992 return to $253,391 to take
the adjustments items into account.
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Last modified: May 25, 2011