- 6 - Respondent moved pursuant to Rule 41(b) to increase the deficiency. See sec. 6214(a). Rule 41(b)(1) provides that 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 does not affect the result of the trial of these issues. Whether a motion seeking an amendment should be allowed is within the sound discretion of the Court. Commissioner v. Estate of Long, 304 F.2d 136 (9th Cir. 1962). If there is unfair surprise or prejudice to the opposing party, then the motion to amend should be denied. We do not find that granting respondent's motion to amend would result in unfair surprise to petitioners. In the notice of deficiency, respondent listed an adjustment for "Gross Receipts Sch. C." for 1992 and 1993, but respondent did not state a dollar adjustment. On the schedule B of the notice of deficiency, the explanation for this adjustment stated that "[t]his issue has been opened for examination and can still be audited." Petitioners did not object to respondent's oral motion to conform the pleadings to the evidence. Further, evidence necessary to decide the issue of the additional deficiencies was presented at trial. Petitioners did not object to testimony regarding this matter and even questioned the witnesses about it. Petitioners' pretrial memorandum included the following issuesPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011