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petitioners were liable for an addition to tax under section
6651(a)(1) of $38,837.
On June 26, 2004, petitioners sent respondent a letter and
attached another Form 1040X (petitioners’ second Form 1040X).
Petitioners’ second Form 1040X was identical to petitioners’
first Form 1040X, but the letter included an additional
explanation of the changes made by petitioners to their original
Federal income tax return. Respondent did not file petitioners’
second Form 1040X.
Petitioners filed their petition with this Court on August
20, 2004. Petitioners requested the Court to determine that they
are due a refund “$9000 (Back Approx.)”. Respondent filed an
answer on September 29, 2004, but did not seek an increased
deficiency or addition to tax.
This case was called during the Court’s regular trial
session in Portland, Oregon, beginning December 5, 2005. On
February 21, 2006, respondent filed a Motion for Leave to Amend
Answer to Conform to Evidence Presented at Trial and to Claim an
Increased Deficiency and Addition to Tax, with Accompanying
Proposed Amendment to Answer (respondent’s motion to conform the
pleadings to the evidence) under Rule 41(b). In the amendment to
answer, which was lodged with the Court on February 21, 2006,
respondent asserted that petitioners were liable for an increased
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