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When this case was called for trial, petitioners’ counsel
gave no indication that petitioners wanted to contest anything
other than the issue described in their pleadings and trial
memorandum. The Court ordered both parties to file posttrial
briefs. Petitioners did not file a posttrial brief.6 We
recently discussed the consequences to a party who fails to
advance arguments on brief. In Nicklaus v. Commissioner, 117
T.C. at 120 n.4, we stated: “We conclude that petitioners have
abandoned those other arguments and contentions. See Ryback v.
Commissioner, 91 T.C. 524, 566 n.19 (1988).”7 In the instant
case, we think it is at least as clear that petitioners have
abandoned any arguments that were not raised in their pleadings
and trial memorandum.
6Generally, where a party fails to file a brief on an issue
before the Court, we have the authority to hold the party in
default under Rule 123(a) and enter decision against the
defaulting party or to dismiss the case under Rule 123(b) for
failure to prosecute or for failure to comply with the Rules of
this Court. See Rule 151(a) (“Briefs shall be filed” on order of
the Court). On numerous occasions, we in essence have defaulted
or dismissed issues for failure to brief them. Generally, we
have accomplished this result by considering the issue waived or
conceded. Stringer v. Commissioner, 84 T.C. 693, 704-708 (1985),
affd. without published opinion 789 F.2d 917 (4th Cir. 1986);
Furniss v. Commissioner, T.C. Memo. 2001-137; McGee v.
Commissioner, T.C. Memo. 2000-308; Pace v. Commissioner, T.C.
Memo. 2000-300; Hartman v. Commissioner, T.C. Memo. 1999-176.
7We also note that in Nicklaus v. Commissioner, 117 T.C. 117
(2001), the taxpayers raised arguments similar to those raised by
petitioners herein. In that case, we examined the pleadings and
other documents submitted to this Court and concluded that the
taxpayers’ arguments were without merit.
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