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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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