Bidyut K. Bhattacharyya and Diana T. Bhattacharyya - Page 13

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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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