Philip and Margery Skalka - Page 5

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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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