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deficiency of $561,309, and an increased section 6651(a)(1)
addition to tax of $100,571.
On November 3, 2006, petitioners filed a Motion for Amended
Petition Consistent with the Evidences Presented at Trial, and to
Claim a Refund by Petitioners for $76,890.00, with Accompanying
Proposed Amended Petition (petitioners’ motion to conform
pleadings to the evidence) under Rule 41(b).
OPINION
I. Respondent’s and Petitioners’ Motions To Conform Pleadings
to the Evidence
As a preliminary matter, we must determine whether
respondent’s and petitioners’ motions to conform pleadings to the
evidence should be granted. Section 6214(a) requires a claim for
increased deficiency to be asserted at or before the hearing or
rehearing. It is well established that the word “hearing” used
in section 6214(a) includes all Tax Court proceedings in a case
through entry of decision. Henningsen v. Commissioner, 243 F.2d
954, 959 (4th Cir. 1957), affg. 26 T.C. 528 (1956); Law v.
Commissioner, 84 T.C. 985, 989 (1985). Rule 41(b) allows the
parties to amend their pleadings to conform with the evidence
presented at trial.7 Whether a motion seeking an amendment to
7 Rule 41(b) provides in part:
(1) Issues Tried by Consent: When issues not raised by
the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects
(continued...)
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