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be given freely when justice so requires.” Whether a motion
seeking amendment should be allowed lies within the sound
discretion of the Court. Estate of Quick v. Commissioner, 110
T.C. 172, 178 (1998); Law v. Commissioner, 84 T.C. 985, 990
(1985).
In determining whether permitting a proposed amendment
serves justice, 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 at 178; see Spain v. Commissioner, T.C. Memo.
1978-270.
After two continuances and extensive pretrial proceedings,
on October 5, 2004, the Court sent notice to the parties that
these cases would be tried on March 7, 2005. Respondent’s motion
for leave to file an amended answer was filed on February 9,
2005, and seeks to include as gross income to petitioner the
$4,586,000 of attorney’s fees paid under the terms of the
settlement agreement. Respondent asserts that the issue of
contingent attorney’s fees was not originally included in the
pleadings because the Court of Appeals for the Fifth Circuit, the
Circuit to which an appeal in these cases lies, allowed a
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