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II. Whether Petitioner May Amend Its Petition A Second Time
Rule 34(b)(4) provides that the petition in a deficiency or
liability action shall contain “Clear and concise assignments of
each and every error which the petitioner alleges to have been
committed by the Commissioner * * *. * * * Any issue not raised
in the assignments of error shall be deemed to be conceded.”
Rule 241(d)(1)(C) provides a similar rule for a petition in a
partnership action.
Petitioner seeks to amend its petition a second time to
assign error to the adjustments in the FPAA. Rule 41(a) provides
in part: “A party may amend a pleading once as a matter of
course at any time before a responsive pleading is served. * * *
Otherwise a party may amend a pleading only by leave of Court or
by written consent of the adverse party, and leave shall be given
freely when justice so requires.” Rule 41 is similar to rule
15(a) of the Federal Rules of Civil Procedure, which also
declares that leave to amend “shall be given freely when justice
so requires.” Kramer v. Commissioner, 89 T.C. 1081, 1084-1085
(1987) (citing Foman v. Davis, 371 U.S. 178 (1962)). We have
looked to holdings under rule 15(a) of the Federal Rules of Civil
Procedure for guidance in interpreting Rule 41. Id.
4(...continued)
argument is without merit.
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Last modified: November 10, 2007