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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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