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Respondent's proposed amendment now seeks to assert that
petitioners owe taxes on that additional $2.8 million of
unreported income, plus additional penalties for fraud.
Whether a motion seeking amendment should be allowed lies
within the sound discretion of the Court. Rule 41(a); Estate of
Quick v. Commissioner, 110 T.C. 172, 178 (1998); Law v.
Commissioner, 84 T.C. 985, 990 (1985). In deciding the justice
of a proposed amendment, we must examine the particular
circumstances in the case before us. Estate of Quick v.
Commissioner, supra; Law v. Commissioner, supra. We consider,
among other factors, whether an excuse for the delay exists and
whether the opposing party would suffer unfair surprise,
disadvantage, or prejudice if the motion to amend were granted.
Estate of Quick v. Commissioner, supra; Nolte v. Commissioner,
T.C. Memo. 1995-57, affd. without published opinion 99 F.3d 1146
(9th Cir. 1996); Estate of Ravetti v. Commissioner, T.C. Memo.
1992-697; Spain v. Commissioner, T.C. Memo. 1978-270.
Respondent's motion appears to indicate a change in
position. In respondent's response to petitioners' Revised
Interrogatory No. 40, respondent earlier indicated that, although
respondent lacks direct evidence that the $2.8 million from
petitioner's allocution was included in computing the determined
deficiency, the circumstantial evidence that this amount has been
included is "compelling". Our own review of respondent's
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