- 8 -
Clearly, respondent had fair warning of this issue. In fact,
respondent’s pretrial memorandum--submitted to the Court about 2
weeks before trial--specifically addressed this issue, although
without reference to section 6335 or any other legal authority.
Similarly, in his opening and reply briefs, respondent addressed
this issue (again without citation to any legal authority),
arguing that the Appeals officer properly refused to comply with
petitioners’ request to sell the stock because petitioners failed
to submit certain information in writing as requested by the
Appeals officer.
We believe that petitioners’ citation to section 6335(f) on
reply brief does not raise a new issue but appeals to the
application of the correct law, based upon the record presented
and in support of a claim of which respondent was well aware.
“Neither party can avoid the application of the correct law to
the facts of the case by failing to plead or argue it. That is
the province of the Court.” Concord Consumers Hous. Coop. v.
Commissioner, 89 T.C. 105, 126 (1987) (K�rner, J., concurring),
(citing Park Place, Inc. v. Commissioner, 57 T.C. 767, 769
5(...continued)
petitioners did not expressly raise this issue in their petition.
Nevertheless, because at trial respondent (having previously
addressed the issue in his pretrial memorandum) acquiesced in the
introduction of evidence on this issue without objection, it was
tried with at least the implied consent of respondent.
Accordingly, we treat the issue in all respects as if it had been
raised in the pleadings. See Rule 41(b); LeFever v.
Commissioner, 103 T.C. 525, 538-539 (1994), affd. 100 F.3d 778
(10th Cir. 1996).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011