Estate of Ronald G. Keeton, Deceased, Kimberly Keeton Spence, Personal Representative - Page 13

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          that the estate is misreading the stipulation.  We cannot think             
          of any other reason why the estate would be prejudiced.  The 50-            
          percent test under section 2057(b)(1)(C) is an arithmetical                 
          calculation based on the definitions of adjusted value and                  
          adjusted gross estate in section 2057(c) and (d).  The values               
          used to compute the adjusted gross estate and the adjusted value            
          are no longer in dispute.  Respondent has not caused the estate             
          to “face a belated confrontation which precludes or limits that             
          party’s opportunity to present pertinent evidence”.  Ware v.                
          Commissioner, 92 T.C. 1267, 1268 (1989), affd. 906 F.2d 62 (2d              
          Cir. 1990).  All of the evidence needed to apply the legal                  
          standard is already in the record.  Neither party has suggested             
          that the record contains insufficient facts to permit us to                 
          dispose of the case on the grounds of respondent’s argument.  See           
          Smalley v. Commissioner, 116 T.C. 450, 457 (2001).  The estate is           
          not arguing that any information needed to determine the values             
          in section 2057(c) and (d) is missing or that respondent’s                  
          calculations are incorrect.                                                 
               Further, the estate has no reason to be surprised by                   
          respondent’s argument.  Respondent’s argument does not raise a              
          new issue but appeals to the correct application of the law,                
          based upon the record presented and in support of a claim of                
          which the estate was well aware.  See Zapara v. Commissioner, 126           
          T.C. 215, 219 (2006).  It is based on the correct application of            






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