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At trial, petitioner offered no documentary evidence to
support any of the deductions or allowances claimed by him on
Schedules A, C, and E. In addition, petitioner at trial declined
to offer any testimonial evidence to support any of those
deductions or allowances other than the casualty or theft loss
claimed on Schedule A and Form 4684.
At the end of the trial, respondent made an oral motion to
conform the pleadings to the evidence and to assert an increased
deficiency. Petitioner did not object.
Discussion
As a preliminary matter, we note that petitioner conceded
the adjustments determined in the notice of deficiency. The
remaining issues in this case were raised at trial by way of the
stipulation of facts and petitioner’s own testimony. As stated
above, respondent at trial made an oral motion to conform the
pleadings to the evidence and to assert an increased deficiency,
and we must decide whether to grant such motion. See Rule
41(b)(1); sec. 6214(a).
Generally, we deem issues raised and tried by the consent of
the parties as having been raised in the pleadings. Rule 41(b).
Whether a motion to conform the pleadings should be allowed,
however, is within the sound discretion of the Court.
Commissioner v. Estate of Long, 304 F.2d 136, 144 (9th Cir.
1962), affg. unreported orders of this Court. If there is unfair
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