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Findings of Fact, as set forth in petitioner’s brief, are replete
with references to the Disclosure Statement and the plan,
including the admission (Petitioner’s Proposed Finding 75) that
petitioner was entitled under the plan to receive 7,650,000 newly
issued Endotronics shares.
The majority does not adopt any of petitioner’s proposed
findings regarding the background and terms of the plan, inasmuch
as those findings are irrelevant to the majority’s theory of how
the case should be decided. In my view, however, petitioner, by
including the Disclosure Statement and plan in the stipulated
record, has caused the issues raised in questions 3 and 4 above
in effect to be tried by consent. I believe that the case should
not be regarded as fully submitted for decision until the parties
have been asked to respond to questions 3 and 4, which appear to
me to be ineluctably inherent in the facts of the case as
presented by petitioner with respondent’s consent.
If respondent on a motion for reconsideration and leave to
amend answer should attempt to raise questions 3 and/or 4, and
such motion should be denied by the Court on the grounds of
lateness or surprise, or for whatever reason, then respondent
could try to put question 5 in play, insofar as petitioner is
concerned, if respondent should conclude that there are grounds
for sending petitioner a second notice of deficiency pursuant to
section 6212(c). See Burke v. Commissioner, supra.
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