- 7 - 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 unfairPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011