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In addition to the transactions included in respondent’s
notices of deficiency, at trial respondent claims that in July of
1985 petitioner participated in an additional purchase and sale
of marijuana not included in respondent’s calculations.
Respondent submits that this transaction involved petitioner’s
purchase of 500 pounds of marijuana for $275 per pound and
petitioner’s sale of the marijuana for $550 per pound. The
inclusion of this transaction would result in an increased
deficiency for 1985 on which respondent would bear the burden of
proof. Rule 142(a); Achiro v. Commissioner, 77 T.C. 881, 890
(1981); Williams v. Commissioner, T.C. Memo. 1992-153, affd. 999
F.2d 760 (4th Cir. 1993). We find the evidence insufficient to
satisfy respondent’s burden on this alleged sale of marijuana.
On brief, respondent also takes the position that the $20
per pound paid to the Colonel by petitioner for security and for
transporting the marijuana into the Untied States should not have
been added by respondent’s agent to petitioner’s cost of goods
sold for marijuana purchased from the Texas source. Respondent
contends that under section 280E this amount is not properly
treated as an item of petitioner’s cost of goods sold.
Generally, we do not consider issues that are raised for the
first time on brief, and we decline to consider this untimely
raised issue. See, e.g., Foil v. Commissioner, 92 T.C. 376, 418
(1989), affd. 920 F.2d 1196 (5th Cir. 1990); Markwardt v.
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