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Pursuant to section 6214(a) and Rule 41(b),2 respondent
moved to increase the amount of the deficiency. Respondent moves
to increase the deficiency because of the alleged error made by
Fox Paine when issuing the Form 1099-MISC to petitioner.
Rule 41(b)(2) permits the Court to grant a party's motion to
conform the pleadings to the evidence "freely when justice so
requires" provided the objecting party is not prejudiced by its
admission. Church of Scientology v. Commissioner, 83 T.C. 381,
469 (1984), affd. 823 F.2d 1310 (9th Cir. 1987).
The Court does not find that granting respondent's motion
would result in prejudice to petitioner. The parties agree that
petitioner received the full $7,500. Accordingly, respondent's
motion to conform the pleadings to the evidence so as to assert
an increased deficiency will be granted.
2Rule 41(b)(2) provides:
(2) Other Evidence: If evidence is
objected to at the trial on the ground that
it is not within the issues raised by the
pleadings, then the Court may receive the
evidence and at any time allow the pleadings
to be amended to conform to the proof, and
shall do so freely when justice so requires
and the objecting party fails to satisfy the
Court that the admission of such evidence
would prejudice such party in maintaining
such party's position on the merits.
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Last modified: May 25, 2011