- 23 - 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.Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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