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affirmative defense which, pursuant to Rule 39,2 is required to
be specifically pleaded. Respondent's motion, on the other hand,
seeks to permit the amendment of her answer in the instant case
so as to include the affirmative defense of quasi-estoppel.
Discussion
Before we address the substance of each motion, it is
important that we set out the current status of this case. In
our initial opinion, we addressed each of petitioners’ three
arguments and held for respondent on all three. We cited
petitioners’ failure to carry their burden of proof as the
principal reason for such holdings. The Court of Appeals
rejected the analysis of our initial opinion but has instructed
us to consider whether the doctrine of quasi-estoppel operates to
effect the same result. To comply with the court’s mandate, we
will grant respondent’s motion to amend the pleadings.
Our Rules of Practice and Procedure, in many respects,
parallel the Federal Rules of Civil Procedure. Rule 41(a)
permits amendments to pleadings and provides that "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 his pleading only by leave of Court or by written consent
of the adverse party". Rule 41(a) further provides that leave to
amend "shall be given freely when justice so requires."
2Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure.
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Last modified: May 25, 2011