- 10 - 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 anPage: Previous 1 2 3 4 5 6 7 8 9 10 11 NextLast modified: November 10, 2007