- 9 - presentation of different evidence.’” Id. at 191 (quoting Wayne Bolt & Nut Co. v. Commissioner, 93 T.C. 500, 507 (1989)). Thus, we conclude that respondent has raised a new matter. Respondent went beyond the scope of the original deficiency determination by arguing in his posttrial brief that the discharge of the Household Finance mortgage gave rise to COD income. The deficiency determined in the notice of deficiency was based on COD income from the discharge of three other mortgages. Different evidence is required to show that the Household Finance mortgage generated COD income, because the date of its cancellation, and thus the date for determining petitioners’ solvency for purposes of section 108(a)(1)(B) and (d)(3), differs from the date on which any of the other three mortgages was canceled. Therefore, respondent bears the burden of proof and must show, by a preponderance of the evidence, that petitioners were solvent under section 108(a)(1)(B) as of the calculation date. For the reasons discussed below, we conclude that respondent has failed to meet his burden of proof. C. Respondent’s Failure To Meet His Burden of Proof In order to establish petitioners’ solvency as of the calculation date, respondent must prove by a preponderance of the evidence that the fair market value of petitioners’ assets then exceeded their liabilities. See Merkel v. Commissioner, 109 T.C. 483, 484 (1997). To exclude from that calculation any portion ofPage: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: May 25, 2011