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Commissioner, 16 T.C. 90, 98 (1951) (Tax Court reviews a
deficiency, not the Commissioner’s reasons for determining it),
affd. 199 F.2d 589 (2d Cir. 1952); Standard Oil Co. v.
Commissioner, 43 B.T.A. 973, 998 (1941) (reasons and theories
stated in statutory notice, even if erroneous, do not restrict
the Commissioner in presenting case before the Court), affd. 129
F.2d 363 (7th Cir. 1942); cf. sec. 7522.
Our Consideration of Asset Acquisition Issue Would Not
Prejudice Petitioner
Although respondent’s actions don’t limit our ability to
consider the relationship between fees paid and assets acquired,
the majority suggest we should close our eyes to that
relationship “in order to avoid prejudicing petitioner”.
Majority op. p. 11. According to the majority, if respondent had
stressed that relationship, “petitioner may well have wanted to
offer evidence relating to it.” Id.
I agree that the appropriate question is whether
respondent’s conduct has limited or precluded petitioner’s
opportunity to present pertinent evidence. See Ware v.
Commissioner, supra at 1268-1269; Pagel, Inc. v. Commissioner, 91
T.C. 200, 211-213 (1988), affd. 905 F.2d 1190 (8th Cir. 1990).
However, I disagree that there could be any prejudice in the case
at hand. The stipulated facts clearly establish that Metrobank
paid the fees in order to acquire the assets and deposits it
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