Robert Ho - Page 17

                                       - 17 -                                         
          constitute an abuse of discretion if the taxpayer was not                   
          currently in compliance with Federal tax laws.  E.g., Rodriguez             
          v. Commissioner, T.C. Memo. 2003-153; Moorhous v. Commissioner,             
          T.C. Memo. 2003-183; Londono v. Commissioner, T.C. Memo. 2003-99.           
          B.  Petitioner’s Motion For Leave To File Second Amended Petition           
               We shall begin with petitioner’s motion for leave to file              
          second amended petition.                                                    
               Rule 41(a) provides that leave to amend “shall be given                
          freely when justice so requires.”  In Foman v. Davis, 371 U.S.              
          178, 182 (1962), the Supreme Court stated that leave to amend may           
          be inappropriate where there is:                                            
               any apparent or declared reason--such as undue delay,                  
               bad faith or dilatory motive on the part of the movant,                
               repeated failure to cure deficiencies by amendments                    
               previously allowed, undue prejudice to the opposing                    
               party by virtue of allowance of the amendment, futility                
               of amendment, etc. * * *                                               
          With respect to a motion to amend, a significant inquiry is                 
          whether or not the moving party would prevail on the merits.                
          Russo v. Commissioner, 98 T.C. 28, 31 (1992).  In exercising its            
          discretion, the Court may deny petitioner’s motion for leave to             
          amend if permitting an amended petition would be futile.                    
          Klamath-Lake Pharm. Association v. Klamath Med. Serv. Bureau, 701           
          F.2d 1276, 1293 (9th Cir. 1983).                                            
               On October 7, 2005, petitioner filed a motion for leave to             
          file second amended petition.  Respondent objects to the granting           
          of this motion, and, we therefore must use our discretion in                

Page:  Previous  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  Next

Last modified: May 25, 2011