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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the 1970 Will has been revoked * * * .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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