Melinda D. Rivera - Page 6

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          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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