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[*31] 166-167 (1988), aff’d, 904 F.2d 525 (9th Cir. 1990). The party asserting collateral estoppel as an affirmative defense, in this case petitioner, bears the burden of proof. See Rule 142(a).

Petitioner did not affirmately plead collateral estoppel in her pleadings as required by Rule 39. However, respondent did not object to petitioner’s raising the collateral estoppel argument, and respondent argued the issue on brief. Under these circumstances, we consider the issue to have been raised and tried by consent of the parties. See Rule 41(b); see also LeFever v. Commissioner, 103 T.C. 525, 538 (1994), aff’d, 100 F.3d 778 (10th Cir. 1996).

In support of her argument, petitioner relies on this Court’s opinion in Hovind v. Commissioner, T.C. Memo. 2006-143, aff’d, 228 Fed. Appx. 966 (11th Cir. 2007), and the opinion of the U.S. Bankruptcy Court for the Northern District of Florida in In re Hovind, 197 B.R. 157 (Bkrtcy. N.D. Fla. 1996). Petitioner also relies on the transcript of Mr. Hovind’s sentencing proceedings before the U.S. District Court. 2. Hovind v. Commissioner, T.C. Memo. 2006-143 In Hovind this Court reviewed the appropriateness of a proposed levy action with respect to Mr. Hovind’s 1995-97 Federal income tax deficiencies and additions to tax. We held that the underlying liability was not properly at issue ___________