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