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surprise or prejudice to the opposing party, then the motion
should be denied. Estate of Horvath v. Commissioner, 59 T.C.
551, 555 (1973).
After a review of the entire record, we find that the
factual issues giving rise to respondent’s motion were raised
during trial without petitioner’s objection and with his consent.
The evidence on which respondent bases his motion was admitted at
trial by way of a stipulation of facts, including petitioner’s
revised Form 1040,4 and petitioner’s own testimony. In addition,
we do not find that granting respondent’s motion would result in
unfair surprise or prejudice to petitioner. The evidence in the
record further demonstrates that the deficiency may be greater
than that determined in the notice of deficiency. Accordingly,
we shall grant respondent’s motion to conform the pleadings to
the evidence and to assert an increased deficiency.5
4 The revised Form 1040 was not processed by respondent as
an amended return. There is no statutory authority permitting
the filing of an amended return, and the acceptance or rejection
thereof is solely within the discretion of the Commissioner.
Goldring v. Commissioner, 20 T.C. 79, 81 (1953). We may,
however, admit the revised Form 1040 in evidence as a statement
of petitioner’s present position. See McCabe v. Commissioner,
T.C. Memo. 1983-325.
5 Nevertheless, to the extent that respondent has sought an
increased deficiency, he bears the burden of proof. We note,
however, that petitioner’s revised Form 1040, which was received
in evidence, sufficiently supports respondent’s assertion for an
increased deficiency. See Collins v. Commissioner, T.C. Memo.
1956-156.
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