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Respondent declined an opportunity at the time for trial to
cross-examine petitioner or representatives of his employer about
the effect of the allegedly new policy, apparently because
respondent maintains the position that nothing may be considered
outside of the administrative record made before the settlement
officer. Petitioners did not attempt to introduce any evidence
concerning the actual effect of the allegedly new policy, which
had purportedly been in effect 10 months as of the time set for
trial in May 2007 and presumably would have been reflected in
petitioner’s 2006 or current compensation. Thus we need not
decide whether to reconsider our position as to evidence first
presented at trial. See Murphy v. Commissioner, supra at 311-
312; Robinette v. Commissioner, 123 T.C. 85, 94-101 (2004), revd.
439 F.3d 455 (8th Cir. 2006).
Because petitioners’ proposed OIC was not supported by
evidence of petitioner’s actual current or future earning
potential, we cannot conclude that the settlement officer’s
rejection of their offer was arbitrary, capricious, or without
sound basis in fact or law. The settlement officer’s computation
of what would be acceptable reflected actual earnings that have
not been shown to be unreliable as an indicator of future
earnings, because the claim that the employer’s policy would
reduce petitioner’s earnings is merely speculation. Petitioners
failed to show that the allegedly new overtime policy had an
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