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OPINION
I. Preliminary Matters
A. Amendment to Answer
Trial in this case was held on February 7, 2007. On
April 16, 2007, respondent filed a motion for leave to file
amendment to answer and lodged therewith the corresponding
amendment to answer. Respondent seeks through the amendment to
conform the pleadings to the evidence adduced at trial and, based
on that evidence, specifically to raise the duty of consistency
as an affirmative defense supporting the determination made in
the notice of deficiency. Petitioners on April 27, 2007, filed
an objection to respondent’s motion, generally alleging
dilatoriness and prejudice. Since opening briefs had meanwhile
been filed on April 24 and 27, 2007, the Court advised the
parties by order dated May 2, 2007, that it intended to rule on
the motion in conjunction with the opinion otherwise addressing
the substantive matters in this case and that the parties should
prepare their reply briefs so as to deal with the duty of
consistency in the event that respondent’s motion was ultimately
granted.
Rule 41 governs amended and supplemental pleadings. Rule
41(a) covers amendments generally and provides in effect that
after a responsive pleading is served or 30 days if no responsive
pleading is permitted, “a party may amend a pleading only by
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Last modified: November 10, 2007