Elliot Virgil Wilkerson - Page 9

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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.              

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