- 13 - Petitioners could have included the NOLs among the “adjustments at issue in the administrative or court proceeding” by the simple expedient of moving to amend their petitions to claim the NOL deductions before, rather than after, making their qualified offer. Had that motion been made and granted, which under the postulated conditions would appear to have been likely, cf. Cloes v. Commissioner, 79 T.C. 933 (1982), the NOLs would have become an “adjustment at issue” for purposes of this court proceeding. Instead of moving to amend the petitions before making the qualified offer, petitioners waited until after respondent accepted the qualified offer to move to amend their petitions to claim the NOL deductions. These motions to amend their petitions made after their qualified offer was accepted are obviously too late. As we stated in Korangy v. Commissioner, T.C. Memo. 1989-2, affd. 893 F.2d 69 (4th Cir. 1990): “The time for petitioners to make a thorough examination of their case is prior to the date of trial, not subsequent to their execution of a settlement agreement.” Petitioners assert that it would have been premature to raise the issue of the NOLs prior to arriving at the agreement, which included taxable income for the years in issue. Contrary to this assertion, petitioners could have pleaded the NOL deductions as an alternative position. Rule 31(c) allows pleading in the alternative, and the Court generally requires it.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011