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on brief, we must determine whether considerations of
surprise and prejudice require the Court to protect the
opposing party from having to face a belated issue at a
time when the opportunity to present pertinent evidence is
limited. Ware v. Commissioner, 92 T.C. 1267, 1268 (1989),
affd. 906 F.2d 62 (2d Cir. 1990). In cases where the
opposing party is surprised by the issue, in the sense that
the proponent did not give "fair warning" of his intent to
raise it, and is prejudiced by being foreclosed from
introducing evidence that would have a bearing on the new
issue, we have declined to consider the new issue. See,
e.g., Sundstrand Corp. v. Commissioner, 96 T.C. 226, 346-
348 (1991). On the other hand, we have permitted a party
to raise a new issue on brief where we have found that
there would be no prejudice to the opposing party. See,
e.g., Ware v. Commissioner, supra at 1268-1269; Pagel, Inc.
v. Commissioner, 91 T.C. 200, 210-213 (1988), affd. 905
F.2d 1190 (8th Cir. 1990).
In this case, respondent received no warning, prior to
petitioner's post-trial brief, that petitioner intended to
contend that the probate court's order constituted a
qualified disclaimer under section 2518. Also, at the time
this issue was raised, respondent was foreclosed from
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