- 14 - the pleadings to conform to the evidence should be allowed is within the sound discretion of the Court. Commissioner v. Estate of Long, 304 F.2d 136, 143-145 (9th Cir. 1962). If granting the motion would result in unfair surprise or prejudice to the nonmoving party, the motion should be denied. Church of Scientology v. Commissioner, 83 T.C. 381, 469 (1984), affd. 823 F.2d 1310 (9th Cir. 1987). In respondent’s motion to conform pleadings to the evidence and in the lodged amendment to answer, respondent asserts an increased deficiency of $561,309, and an increased addition to tax under section 6651(a)(1) of $100,571. The increased deficiency is not based on petitioners’ liability for alternative minimum tax, as was the deficiency asserted in the notice of deficiency. Instead, the increased deficiency results from the 7(...continued) as if they had been raised in the pleadings. The Court, upon motion of any party at any time, may allow such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues, but failure to amend does not affect the result of the trial of these issues. (2) Other Evidence: If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, then the Court may receive the evidence and at any time allow the pleadings to be amended to conform to the proof, and shall do so freely when justice so requires and the objecting party fails to satisfy the Court that the admission of such evidence would prejudice such party in maintaining such party’s position on the merits.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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