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With respect to petitioners’ principal complaint that
respondent is guilty of extreme and unexplained dilatoriness, the
Court cannot agree. Respondent’s motion is made expressly as a
motion to conform the pleadings to the evidence. As such, it is
premised on Rule 41(b)(1) and must necessarily be brought after
the underlying issues have been tried. Respondent also notes
specifically that the testimony and evidence introduced at trial
led respondent to raise the duty of consistency defense that is
the subject of the amendment sought. The reason for moving at
this juncture, posttrial, is clear. Furthermore, given that
transcripts of the proceedings would typically have been received
by the parties in early March, and respondent would have required
a reasonable period of time to review the testimony, research the
issue, and prepare the motion and amendment, the April 16, 2007,
filing date would not appear to signal any unreasonable delay.
Concerning petitioners’ generalized references to prejudice,
they have failed even to suggest that they possess relevant
evidence that would have been introduced had the issue been
earlier raised. See Lilley v. Commissioner, T.C. Memo. 1989-602
(“Petitioner does not suggest that he has evidence which might
have been offered at trial to overcome” an affirmative defense
raised under Rule 41.), affd. without published opinion 925 F.2d
417 (3d Cir. 1991). Nor do they suggest any manner in which
their preparation or strategy for trying the case might have
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Last modified: November 10, 2007