- 34 - 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.Page: Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Next
Last modified: May 25, 2011