- 5 -
under Rule 41(b) and properly before the Court. See Christensen
v. Commissioner, T.C. Memo. 1996-254, affd. without published
opinion 142 F.3d 442 (9th Cir. 1998).
If sustained, respondent's disallowance of petitioner's
claimed deductions totaling $11,506 may result in a deficiency
higher than that determined in the notice of deficiency. Section
6214(a) provides that this Court shall have jurisdiction to
redetermine the correct amount of the deficiency even if the
amount so redetermined is greater than the amount determined by
the Commissioner in the notice of deficiency if the Commissioner
asserts a claim at or before the hearing or rehearing.
Consistent with the general mandate of section 6214(a), this
Court generally will exercise its jurisdiction over an increased
deficiency only where the matter is properly pleaded. Markwardt
v. Commissioner, 64 T.C. 989, 997 (1975); McGee v. Commissioner,
T.C. Memo. 2000-308 (citing Estate of Petschek v. Commissioner,
81 T.C. 260, 271-272 (1983), affd. 738 F.2d 67 (2d Cir. 1984)).
Rule 41(b)(1), however, provides that when an issue not
raised in the pleadings is tried with the express or implied
consent of the parties, that issue is treated in all respects as
if it had been raised in the pleadings. Thus, where the
Commissioner raises an issue that could result in an increased
deficiency without formally amending his pleading and that issue
is tried with the taxpayer's express or implied consent, the
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