- 11 - to petitioners on June 1, 1992. Petitioners again declined or at least failed to sign the piggyback agreement. At trial, petitioner testified that he could not recall whether he had received piggyback agreements and that he would have responded to a piggyback offer if he had received one. In his posttrial brief, petitioner conceded that he had received respondent’s June 1, 1992, letter. However, there is no evidence in the record that indicates that petitioners responded to the piggyback offers. Discussion Rule 41(a) provides: “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 a 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.” 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). See Kramer v. Commissioner, 89 T.C. 1081, 1084-1085 (1987). Rule 15(a) of the Federal Rules of Civil Procedure, like Rule 41(a), mandates that leave to amend “shall be freely given when justice so requires.” Petitioners’ motion for leave was not filed before the responsive pleading, and respondent has not consented to the motion. Accordingly, the Court must use its discretion inPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011