Estate of Augusta Porter Forbes - Page 19




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          disadvantage to the petitioner in the presentation of his case              
          because of the manner in which the statutory notice and pleadings           
          were drawn”.  Estate of Horvath v. Commissioner, 59 T.C. 551, 555           
          (1973); see Mills v. Commissioner, 399 F.2d 744 (4th Cir. 1968),            
          affg. T.C. Memo. 1967-67; Estate of Finder v. Commissioner, 37              
          T.C. 411 (1961).                                                            
               Clearly, petitioner was surprised and prejudiced by                    
          respondent’s posttrial contentions in this regard.  Because                 
          neither the notice of deficiency nor the pleadings alerted                  
          petitioner to respondent’s sham argument, petitioner was denied             
          the opportunity to present evidence regarding it.  Accordingly,             
          we decline to consider respondent’s sham argument first raised on           
          brief.  See Seligman v. Commissioner, supra.                                
               In any event, even if we were to consider respondent’s sham            
          argument, it is not apparent how it would avail respondent.  On             
          reply brief, respondent contends that Mr. Forbes conveyed his               
          land to the limited partnership so that his estate could claim a            
          fractional discount with respect to its limited partnership                 
          interest.8  Respondent’s reply brief states:  “The parties [i.e.,           
          Mr. Forbes, Walter, and Betty] did not really part with their               
          property.  There was no economic consequence to the conveyance to           
          the partnership.”  Respondent’s sham argument raises many                   

               8 The record does not conclusively establish how Mr. Forbes’           
          estate valued his limited partnership interest for Federal estate           
          tax purposes.                                                               





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