Henry A. Julicher - Page 23




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               Respondent also cites the discrepancy between (i)                      
          petitioner’s claim in the document given to his accountant and in           
          his petition that the buildings in issue were valuable before,              
          and useless after, the claimed casualty, and (ii) the testimony             
          of Mr. Keil, the building inspector, to the effect that the                 
          buildings in question were being used after the roof collapse.              
          But Mr. Keil was respondent’s witness, and his testimony was                
          characterized in respondent’s trial memorandum as concerning the            
          buildings’ condition before and after the claimed casualty.  Thus           
          respondent knew prior to trial that he had an independent witness           
          to contradict petitioner’s various assertions that the buildings            
          were rendered useless by the claimed casualty.                              
               We conclude that the essential facts on which respondent               
          bases his allegations of fraud were known to respondent’s counsel           
          prior to trial.  Under the circumstances of this case, the                  
          failure to give notice to petitioner that he was required to                
          defend against fraud results in significant prejudice.  Cf.                 
          Pallante v. Commissioner, T.C. Memo. 1989-334 (counsel for                  
          respondent sought amendment to pleadings to assert fraud after              
          trial, based on facts known prior to trial).  While there is                
          evidence in the record that might support a finding that                    
          petitioner committed fraud, petitioner was entitled to notice and           
          an adequate opportunity to rebut respondent’s evidence.                     
          Accordingly, respondent’s motion to amend is denied.                        






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