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increase in income and the disallowance of many of petitioners’
itemized deductions.
Petitioners object to respondent’s motion to conform
pleadings to the evidence, arguing: (1) An evidentiary ruling
made by the Court during trial prevents respondent from seeking
an increased deficiency; and (2) an amendment to answer would
result in unfair surprise and would prejudice petitioners because
the amendment is based on grounds different from those asserted
in the notice of deficiency.
Petitioners also filed a motion to conform pleadings to the
evidence. Petitioners assert that, based on the evidence and
testimony presented at trial, they are entitled to a refund in
the amount of $76,890, instead of the approximately $9,000
asserted in the petition. Respondent does not object to the
granting of petitioners’ motion to conform pleadings to the
evidence.
Petitioners’ objection notwithstanding, we find that
granting respondent’s or petitioners’ motions to conform
pleadings to the evidence would not result in unfair surprise or
prejudice to either party. Petitioners’ argument that an
evidentiary ruling made by the Court prevents respondent from
seeking an increased deficiency is based on a misunderstanding of
the Court’s evidentiary ruling. Petitioners focus on Exhibit 42-
R, which was a Form 4549, Income Tax Examination Changes,
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