Elliot Virgil Wilkerson - Page 8

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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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