Alan E. and Harriet R. Lewis - Page 6

                                        - 6 -                                         
               This Court has looked to cases decided under rule 15(a) of             
          the Federal Rules of Civil Procedure for guidance on the                    
          interpretation of Rule 41(a).  Kramer v. Commissioner, 89 T.C.              
          1081, 1084-1085 (1987).  Like Rule 41(a), rule 15(a) of the                 
          Federal Rules of Civil Procedure mandates that leave to amend               
          "shall be given freely when justice so requires."                           
               The decision of whether a motion to amend the pleadings                
          should be granted is within the sound discretion of the Court.              
          Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 330                 
          (1971); Foman v. Davis, 371 U.S. 178, 182 (1962).  The exercise             
          of our discretion, however, must be controlled by sound reason              
          and fairness.  Law v. Commissioner, 84 T.C. 985, 990 (1985).                
               Petitioners maintain that Rule 39 requires a party to                  
          include in his or her pleadings any matter consisting of an                 
          avoidance or affirmative defense.  The underlying rationale for             
          this Rule is to provide the opposing party ample opportunity to             
          address the related issues.  There is no doubt that estoppel and            
          its various counterparts, such as quasi-estoppel and equitable              
          estoppel, are affirmative defenses within the meaning of Rule 39.           
          Petitioners, however, fail to properly consider Rule 41 or the              
          appellate mandate in this case.  In appropriate circumstances we            
          may permit the movant to amend the pleadings so as to include a             
          previously omitted affirmative defense.  See Flint v.                       
          Commissioner, T.C. Memo. 1991-405; Lilley v. Commissioner, T.C.             
          Memo. 1989-602, affd. without published opinion 925 F.2d 417 (3d            




Page:  Previous  1  2  3  4  5  6  7  8  Next

Last modified: May 25, 2011