Lee B. Arberg and Melissa A. Quinn - Page 14




                                       - 14 -                                         
                                       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                







Page:  Previous  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  Next 

Last modified: November 10, 2007