- 20 - 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 Respondent contends that under Georgia law the 1970 Will has been revoked * * * .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.Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
Last modified: May 25, 2011