Estate of Henry A. Lassiter, deceased, Paula Ann Masters Lassiter, administrator, C.T.A. - Page 20

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          found.”  However, the supplemental stipulation of facts which the             
          parties signed on December 13, 1999, includes the language below:             
                    The 1970 Will was drafted by Rufus A. Chambers, a                   
               member of the Georgia Bar.  A true and correct copy of                   
               his affidavit is attached hereto as Exhibit 27-P and is                  
               accepted as his testimony subject to the following                       
               objections.  Respondent contends that under Georgia law                  
               the 1970 Will has been revoked * * * . * * * Petitioner                  
               does not consent to consideration of Respondent’s                        
               revocation contention and, in addition to substantive                    
               objections, objects to it on the grounds that it would                   
               constitute a new matter.                                                 
               From a procedural standpoint, it is well settled that the                
          Commissioner’s determination may be affirmed for reasons other                
          than those assigned in the statutory notice of deficiency.  See               
          Estate of Horvath v. Commissioner, 59 T.C. 551, 555 (1973).  At               
          the same time, however, it is equally the general rule of this                
          Court that issues which are not properly pleaded and which are                
          raised for the first time on brief will not be considered when to             
          do so would surprise and prejudice the opposing party.  See DiLeo             
          v. Commissioner, 96 T.C. 858, 891-892 (1991), affd. 959 F.2d 16               
          (2d Cir. 1992); Markwardt v. Commissioner, 64 T.C. 989, 997                   
          (1975); Estate of Horvath v. Commissioner, supra at 555.  Such                
          prejudice arises when the opposing party would be prevented from              
          presenting evidence that might have been offered if the issue had             
          been timely raised.  See DiLeo v. Commissioner, supra at 891;                 
          Estate of Horvath v. Commissioner, supra at 555.                              

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