Bidyut K. Bhattacharyya and Diana T. Bhattacharyya - Page 14

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          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.                                        




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