Venture Funding, Ltd. - Page 34

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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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Last modified: May 25, 2011