Jerry S. Payne - Page 5

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                                  FINDINGS OF FACT6                                   
               Some facts are stipulated and are so found.  The stipulation           
          of facts, with accompanying exhibits, is incorporated herein by             
          this reference.  In addition, as they relate to this case and               
          were accepted by the Court of Appeals, we incorporate relevant              
          portions of our findings of fact in Payne v. Commissioner, T.C.             
          Memo. 1998-227, revd. 224 F.3d 415 (5th Cir. 2000), an earlier              
          case involving deficiency determinations against petitioner for             
          the 2 prior taxable years (1987 and 1988).7                                 
               At the time the petition was filed, petitioner resided in              
          Houston, Texas.                                                             

          commenced prior to July 22, 1998.  Petitioner does not dispute              
          that contention.  Accordingly, sec. 7491 is inapplicable to this            
               6  Petitioner has failed to set forth objections to                    
          respondent’s proposed findings of fact.  Accordingly, we conclude           
          that petitioner concedes that respondent’s proposed findings of             
          fact are correct except to the extent that petitioner’s findings            
          of fact are clearly inconsistent therewith.  See Jonson v.                  
          Commissioner, 118 T.C. 106, 108 n.4 (2002).                                 
               7  We do not believe that the facts that we incorporate are            
          controversial.  We incorporate them principally to provide                  
          background material.  Indeed, at the call of this case from the             
          calendar, petitioner stated that the prior case involves “exactly           
          the same facts” as this case.  See Peninsula Props. Co. v.                  
          Commissioner, 47 B.T.A. 84, 85 (1942), and Miller v.                        
          Commissioner, 47 B.T.A. 68, 69 (1942), in each of which we                  
          incorporated by reference all of our findings of fact in the                
          other and in a third related case involving individuals and                 
          entities common to all three cases.                                         

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