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6214(a); Evans Publg., Inc. v. Commissioner, 119 T.C. 242, 247
(2002).
In petitioners’ motion for summary judgment,3 trial
memorandum, and “Addendum to Petitioner’s Trial Testimony of
9/9/2002”, petitioners request an abatement of all interest
associated with the determined deficiency. In their petition,
petitioners did not request an abatement of interest, nor did
they amend their petition to claim such relief. However, when
issues not raised by the pleadings are tried by express or
implied consent of the parties, the issues shall be treated as if
they had been raised in the pleadings. Rule 41(b). Respondent
was on notice before trial that petitioners were requesting
interest abatement. Further, respondent did not object at trial
when petitioners requested such relief. The interest abatement
issue was tried by consent of the parties, and we shall treat
that claim as if it had been made in the pleadings, pursuant to
Rule 41(b)(1).
On the basis of the above, the issues for decision for the
1997 taxable year are: (1) The capital gains tax rate applicable
to petitioners’ capital gains; (2) whether petitioners are liable
for the AMT; and (3) whether petitioners are entitled to interest
abatement.
3 Petitioners’ motion for summary judgment was denied on
July 8, 2002. See infra p. 7.
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