Joseph D. and Wanda S. Lunsford - Page 19




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          right.  So that [the hearing] issue is not being conceded by                
          Petitioners.”  Id.                                                          
               I am at a loss to reconcile these statements with the                  
          majority’s conclusions that:  (1) “In the entire course of this             
          judicial proceeding, petitioners have raised only one substantive           
          issue that they want to be considered, i.e., whether there was a            
          sufficient record showing that the taxes in issue were assessed             
          under section 6203 and section 301.6203-1, Proced. & Admin.                 
          Regs.”, (2) “When this case was called for trial, petitioner’s              
          counsel gave no indication that petitioners wanted to contest               
          anything other than the issue [discussed by the majority]”, and             
          (3) “We do not construe the instant appeal as being predicated on           
          allegations that respondent failed to offer petitioners a hearing           
          per se”.  Majority op. pp. 6, 8, 10-11.  The majority focuses               
          exclusively on their reading of the petition and makes no                   
          reference to the statements at trial or, for that matter, Rule              
          41(b)(1), which mandates that an issue not raised in the                    
          pleadings is treated as if raised in the pleadings when it is               
          tried with the express or implied consent of the parties.  The              
          fact that the hearing requirement was tried by the express or               
          implied consent of the parties (and, therefore, is at issue in              
          this case) is evidenced not only by the statements of all of the            
          speakers at trial but by the fact that, with the exception of the           
          section 6673 argument, respondent limited his brief to that one             






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