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In employing the concept of implied consent in the setting
of this case, there is no reason to make a distinction between
allegations of error and affirmative defenses. Accordingly, the
implied consent provisions of Rule 41(b)(1) can be applied to
satisfy the Rule 39 requirement to plead or allege avoidances and
affirmative defenses.
Next, we consider whether the issue of collateral estoppel
was tried with respondent’s implied consent. Respondent became
aware that petitioner was relying on collateral estoppel when the
affirmative defense was raised in petitioner’s opening statement
at the beginning of the trial. In his responsive opening
statement, respondent did not address the question of collateral
estoppel. Respondent objected to collateral estoppel, for the
first time, in his posttrial brief.
The question of collateral estoppel, as argued by
petitioner, is wholly dependent upon this Court’s prior opinion
concerning the identical parties and taxable year(s) as we
consider in the current proceeding. Therefore, there was no need
for petitioner or respondent to present additional evidence or
question witnesses. Respondent would be estopped only if an
issue resolved in our prior opinion met the requirements for
collateral estoppel. Accordingly, respondent was not surprised
or prejudiced. Respondent had every opportunity to fully address
the merits of collateral estoppel on brief and did so. We hold
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