Mary Catherine Pierce - Page 13

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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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