Sippi Nazarian v. Commissioner Internal Revenue Service

990 F.2d 1259 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Sippi NAZARIAN, Petitioner-Appellee, v. COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellant. 91-70181. United States Court of Appeals, Ninth Circuit. Submitted March 4, 1993. * Decided March 8, 1993. Before D.W. NELSON, WIGGINS and LEAVY, Circuit Judges. 1 MEMORANDUM ** 2 The sole issue presented by this appeal is whether the Tax Court was required as a matter of law to grant the Nazarians' 1 post-trial request to amend their petitions challenging the Commissioner's noticed deficiencies for tax years 1968 and 1969 in order to assert for the first time a claim for income averaging. We vacate and remand for further proceedings. 3 In Kelley v. C.I.R., 877 F.2d 756 (9th Cir.1989) we held in part that, because the Commissioner was on notice that the petitioners had elected income averaging for the tax year in question and the Commissioner did not challenge that claim to income averaging until after trial, the…