Alan E. and Harriet R. Lewis - Page 5

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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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