- 19 - 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 onePage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: May 25, 2011