Marci L. and Carl C. Voigt - Page 6

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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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