HJ Builders, Inc. - Page 17

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          the corporate ledger “Wayne Cash Loans to HJB”.  Therefore, we              
          conclude that any alleged loans from Mr. Wright to HJ Builders              
          were equity contributions to risk capital rather than true debt.            
          See Fin Hay Realty Co. v. United States, 398 F.2d at 696; Segel             
          v. Commissioner, supra at 832.  Thus the disbursements totaling             
          $72,000 in 2001 were dividend distributions taxable to                      
          Mr. Wright.                                                                 
               On brief, petitioners assert for the first time that HJ                
          Builders did not have enough earnings and profits in calendar               
          year 2001 to allow for dividend treatment of the distributions              
          paid out to Mr. Wright that year.  Petitioners argue that                   
          adjustments should be made to HJ Builders’ stated earnings and              
          profits to account for previous distributions to Mr. Wright that            
          should have been treated, for both book and tax purposes, as                
          dividend distributions but were not.  Respondent argues that                
          allowing this belated argument would prejudice respondent.                  
               The Court has consistently allowed a party to rely on a                
          theory only if the opposing party is provided with fair warning             
          and is not prejudiced by the need to gather additional evidence             
          to address the opposing party’s theory adequately.  Seligman v.             
          Commissioner, 84 T.C. 191, 198-199 (1985), affd. 796 F.2d 116               
          (5th Cir. 1986).  Although petitioners claim that Wayne’s Ledger            
          represents amounts distributed to Mr. Wright that reduced                   
          HJ Builders’ earnings and profits balance in previous years,                






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