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business deductions in the event this Court should determine that
Ms. Brumley’s income was subject to self-employment tax.
Rule 41(a) provides that a pleading may be amended once as a
matter of course at any time before a responsive pleading is
served, and, thereafter, amendment may be made by leave of the
Court or by written consent of the adverse party. Prior to
trial, petitioners had never requested leave of this Court to
amend their petition and did not raise this new issue until the
date set for trial of this case. At this late date we will not
permit petitioners to amend their pleading.
This case is not one where an issue has been tried by
express or implied consent of the parties, in which event we
treat the issue as if raised in the pleadings. Rule 41(b). This
case presents a situation in which respondent’s counsel was
faced, on the date of trial, with trying an issue not known to
him.
Further, Mr. Tijerina has failed to comply with our Standing
Pre-Trial Order. He did not meet with respondent to stipulate
facts and exhibits after service of our Standing Pre-Trial Order,
and has not submitted a trial memorandum. When asked by the
Court why he failed to comply with the requirements of the
Standing Pre-Trial Order, Mr. Tijerina offered no satisfactory
explanation. Not only did he fail to raise the issue in a trial
memorandum so that the Court and respondent would be apprised of
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