- 13 - 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...)Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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