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V. Respondent Has Not Unfairly Prejudiced the Estate by Arguing
on Brief That the Adjusted Value of the Combined Interests
of the Corporations Does Not Exceed 50 Percent of the
Adjusted Gross Estate.
The estate argues that this Court should refuse to consider
respondent’s argument concerning the 50-percent test because
according to the estate, respondent raised it as a new issue in
his opening brief. In support of its position, the estate cites
cases where this Court has declined to consider arguments raised
for the first time by a party in its pretrial memorandum or brief
where our consideration of such argument would surprise or
prejudice the opposing party. Harrison v. Commissioner, T.C.
Memo. 1994-268 (citing Gordon v. Commissioner, 85 T.C. 309, 331
n.16 (1985); Fox Chevrolet, Inc. v. Commissioner, 76 T.C. 708,
733-736 (1981)).
The estate’s argument that it has been prejudiced revisits
the argument it made that respondent’s position contradicts the
stipulation of facts. The estate’s position is that it is
prejudiced because it agreed to forgo trial based upon the
premise that the only issue in dispute was whether the estate
could combine the values of the two corporations to pass the 50-
percent test. Based upon the estate’s reading of the stipulation
regarding the combined values of the corporations, the estate
assumed that whether the two corporations combined passed the 50-
percent test was no longer at issue. We have already concluded
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