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Respondent’s Motion To Amend Pleadings
At trial, respondent moved to amend the pleadings to conform
them to the evidence adduced concerning Mr. Callahan’s income in
2002 and to increase Mrs. Callahan’s deficiency for 2002, on
account of her marital share of Mr. Callahan’s income in that
year.
Whether a motion seeking an amendment of the pleadings
should be granted is within the discretion of the Court.
Commissioner v. Estate of Long, 304 F.2d 136 (9th Cir. 1962).
Leave to amend the pleadings to conform to the proof shall be
given freely when justice so requires and, where the nonmoving
party has objected to the evidence giving rise to the motion to
amend, the nonmoving party has failed to satisfy the Court that
the admission of the evidence would prejudice such party. Rule
41(b)(2).
Respondent seeks to amend the pleadings to assert that Mrs.
Callahan had marital income to the extent of one-half of Mr.
Callahan’s $41,290 in compensation for services from J. Tyson &
Associates in 2002.3 Petitioners did not object to the admission
of the evidence concerning Mr. Callahan’s 2002 income; indeed,
they stipulated that he received it. Moreover, petitioners were
3 Mr. Callahan’s 2002 taxable year is not at issue in this
case.
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Last modified: November 10, 2007