Michael A. Lacher and Judith W. Lacher - Page 12




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          deciding whether to grant or deny petitioners’ motion for leave               
          to amend.  See Kramer v. Commissioner, supra at 1085.  In                     
          exercising our discretion, we consider various factors, including             
          the timeliness of the motion, the reasons for the delay, and                  
          whether granting the motion would result in issues being                      
          submitted in a seriatim fashion.  See Daves v. Payless Cashways,              
          Inc., 661 F.2d 1022, 1024 (5th Cir. 1981).  Leave to amend may be             
          inappropriate when there is undue delay, bad faith, prejudice                 
          resulting from the amendment, or a dilatory motive of the movant.             
          See Foman v. Davis, 371 U.S. 178, 182 (1962); Russo v.                        
          Commissioner, 98 T.C. 28, 31 (1992).  Moreover, we deny a                     
          taxpayer’s motion to amend a petition when the argument raised is             
          futile.  See Russo v. Commissioner, supra.                                    
               In their present motion for leave to amend their petition,               
          petitioners argue that they should be relieved of the negligence              
          addition to tax because respondent has a duty to afford                       
          substantially equal treatment to similarly situated taxpayers.                
          In their last-minute new argument, they suggest that respondent               
          and this Court lack discretion to reach different results as to               
          them, as contrasted with other taxpayers who accepted a standard              
          settlement offer made 11 years ago, before trial of the test                  
          case.                                                                         
               Absent proof that a taxpayer has been singled out for                    
          disparate treatment based on impermissible considerations such as             






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