- 17 -
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
Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: November 10, 2007