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motion at the calendar call, respondent raised no objection as to
the adequacy of the pleadings. Having brought the disputed
refund issue to the Court’s attention both before the scheduled
trial session and at calendar call, and having orally moved the
Court to consider the issue (albeit in a motion to dismiss for
lack of jurisdiction), respondent is scarcely in a position to
complain now that the issue is not properly before us or that he
would be surprised or prejudiced by our considering it. Taking
into account petitioners’ status as pro se litigants and seeking
to accomplish substantial justice, we deem the issue of the
disputed refund to have been raised with respondent’s implied
consent; accordingly, we treat this issue as if it had been
raised in the pleadings. Cf. Rule 41(b); Wilson v. Commissioner,
T.C. Memo. 1994-454 n.1; Swope v. Commissioner, T.C. Memo. 1990-
82 n.6.
C. Might the Disputed Refund Check Affect the Amount of the
Deficiency or Give Rise to an Overpayment Claim?
On the merits of his motion for entry of decision,
respondent contends:
No matter whether the [disputed refund] check was
received or not, the amount of the deficiency in this
case, as defined by I.R.C. � 6211, is unaffected. In
addition, given the amount of the agreed deficiency in
this case ($2,396.00), the amount of the check
($896.00) is too small to produce an overpayment.
Thus, although the payment of the check is relevant to
a calculation of the balance due from petitioners, it
is not relevant to the calculation of the deficiency
and is too small to raise any chance of an overpayment.
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