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summary judgment. See, e.g., Little v. Liquid Air Corp., supra;
Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146 (5th Cir.
1990); Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097 (5th
Cir. 1979).
As respondent acknowledges, however, there is no per se rule
requiring the trial court to deny a motion for leave to amend
after a motion for summary judgment has been filed. See Zaidi v.
Ehrlich, 732 F.2d 1218, 1220 (5th Cir. 1984); Bamm, Inc. v. GAF
Corp., 651 F.2d 389, 391-392 (5th Cir. 1981). Considering that
the instant case was not scheduled for trial when petitioner
filed its motion and that the issues are largely confined to the
adjustments made in the FPAA, we conclude that it is appropriate
to allow petitioner to amend its petition again.
Having decided that petitioner may amend its petition again,
we shall deny respondent’s motion for summary judgment. The
second amended petition assigns error to the adjustments in the
FPAA, thus raising genuine issues as to material facts. Summary
judgment therefore is inappropriate. See Rule 121(b); Sundstrand
Corp. v. Commissioner, 98 T.C. at 520.
To reflect the foregoing,
An appropriate order will
be issued.
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Last modified: November 10, 2007