Lee B. Arberg and Melissa A. Quinn - Page 17




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          respond.  For instance, this and other courts may take into                 
          account whether the nonmovant would be prevented from presenting            
          evidence that might have been introduced if the matter had been             
          raised earlier; whether the evidence that supports the unpleaded            
          issue was introduced without objection; whether the movant                  
          delayed unduly in raising the matter; and the like.  E.g., Foman            
          v. Davis, supra at 182; United States v. Shanbaum, 10 F.3d 305,             
          312-313 (5th Cir. 1994); Estate of Quick v. Commissioner, supra             
          at 178-180; LeFever v. Commissioner, supra at 538 & n.16; Kroh v.           
          Commissioner, supra at 388-389; Law v. Commissioner, 84 T.C. 985,           
          990-993 (1985); Markwardt v. Commissioner, supra at 998;                    
          Bhattacharyya v. Commissioner, supra; Pierce v. Commissioner,               
          supra.                                                                      
               Here, as noted, respondent seeks to amend the answer to                
          raise the affirmative defense of the duty of consistency as an              
          alternative or supplemental position in support of the determined           
          deficiency.  Respondent argues that the duty of consistency                 
          should prevent petitioners from maintaining that ownership of the           
          E Trade account, or the losses generated by trades therein, are             
          attributable to other than Ms. Quinn.  As will be explained in              
          greater detail below, two items of evidence offer the primary               
          support for this position.  The most crucial element is testimony           
          by Ms. Quinn at trial concerning the reporting of transactions in           
          the E Trade account on her 1999 tax return.  This testimony was             







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