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F.3d 305, 312 (5th Cir. 1994). The Court of Appeals held that
the issue of res judicata may be tried by implied consent. In
reaching its holding, the Court of Appeals considered factors
similar to those that this Court has considered with respect to
the use of implied consent in circumstances where pleading
requirements for matters other than affirmative defenses were
involved.
In arriving at its holding, the Court of Appeals considered
“whether the parties recognized that the unpleaded issue entered
the case at trial, whether the evidence that supports the
unpleaded issue was introduced at trial without objection, and
whether a finding of trial by consent prejudiced the opposing
party’s opportunity to respond.” United States v. Shanbaum,
supra at 312-313 (citing Haught v. Maceluch, 681 F.2d 291, 305-
306 (5th Cir. 1982)); Jimenez v. The Tuna Vessel “Granada”, 652
F.2d 415, 421 (5th Cir. 1981); see also Markwardt v.
Commissioner, 64 T.C. 989, 997 (1975) (and cases cited thereat).
Similarly, this Court, in deciding whether to apply the
principle of implied consent, has considered whether the consent
results in unfair surprise or prejudice toward the consenting
party and prevents that party from presenting evidence that might
have been introduced if the issue had been timely raised. See
Krist v. Commissioner, T.C. Memo. 2001-140; McGee v.
Commissioner, T.C. Memo. 2000-308.
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