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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,
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