- 7 - Since petitioners had not filed a petition with the Court, section 6212(c) did not preclude respondent from issuing a second statutory notice of deficiency for tax year 1990. Accordingly, we hold that the second statutory notice of deficiency is valid. Motion To Conform Pleadings to the Evidence Respondent’s motion is for leave to file an amended answer for an increased deficiency and penalty. The increase from $1,017,248 to $1,540,280 arises due to correction of the amount realized from the transfer of the computer lease obligation. Petitioners allege harm and prejudice should we allow respondent to amend her answer. At the close of trial, respondent moved pursuant to Rule 41(b) to increase the deficiency. This Court has held on numerous occasions that it will not consider issues which have not been properly pleaded or otherwise preserved. Markwardt v. Commissioner, 64 T.C. 989, 997-998 (1975). Nevertheless, Rule 41(b) provides a procedure whereby in appropriate circumstances the pleadings may be amended to conform to the evidence presented at trial.3 3 Rule 41(b) provides as follows: (1) Issues Tried by Consent: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. The Court, upon motion of any party at any time, may allow such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues, but failure to amend (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011