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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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