- 13 - the pleading of concise assignments for each and every error that a petitioner may allege was committed by the Commissioner. That Rule provides further that “Any issue not raised in the assignments of error shall be deemed to be conceded.” Likewise, Rule 36 generally provides that the Commissioner make specific admissions or denials of a petitioner’s allegations. In addition to the basic pleading requirements, Rule 39 requires that a party must plead any matter constituting an avoidance or affirmative defense, including collateral estoppel. See also Jefferson v. Commissioner, 50 T.C. 963, 966-967 (1968) (and cases cited thereat). With respect to all pleadings and amendments thereto, Rule 41(b)(1) provides that an issue may be tried by implied consent if the issue was not raised in the parties’ pleadings. In appropriate circumstances, an issue that was not expressly pleaded, but was tried by consent of the parties, may be treated in all respects as if raised in the pleadings. Rule 41(b)(1); LeFever v. Commissioner, 103 T.C. 525, 538-539 (1994), affd. 100 F.3d 778 (10th Cir. 1996). This Court has held that implied consent can be used to satisfy the pleading requirements of Rules 34 and 36, pertaining to petitions and answers. We have permitted the amendment of a pleading under Rule 41(a) with respect to a matter which we found was tried by consent. Little has been written, however,Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011