Michael A. Lacher and Judith W. Lacher - Page 11




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          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 in                    






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