- 11 -
pertaining to the partnership item determinations have been known
to respondent for many years.”
2. The Requirements of Justice
We must freely give leave to amend a pleading when justice
so requires. See Rule 41(a). Justice does not require leave to
amend a pleading, however, when giving such leave will surprise
and substantially disadvantage an adverse party. See, e.g.,
Estate of Horvath v. Commissioner, 59 T.C. 551, 555 (1973).
3. Discussion
Intervenor has failed to persuade us that justice requires
us to grant him leave to make the amendment. We have set forth
supra in section II the elements necessary to sustain the defense
of equitable recoupment. Those elements involve facts well
beyond those raised by petitioner’s assignments of error in the
petition. They involve facts concerning other years of the
partnership and items that are not partnership items. For
instance, nothing in the petition would alert respondent that
payments of tax by the partners for their 1987 tax year might be
placed in issue. Many of the facts necessary to rebut the
amendment were established well over 10 years ago, and, even if
respondent was once in possession of evidence of those facts,
intervenor has failed to show us that such evidence is readily
available to respondent today. Moreover, by the date respondent
had obeyed our order to respond to the motion (August 4, 1999),
the period for discovery had almost run. See Rule 70(a)(2)
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011