-4- Petitioner’s objections to the motion fall into three categories. Petitioner argues: (1) Respondent is in violation of the Court’s Rules, (2) respondent failed to exercise due diligence, and (3) if the motion is granted, petitioner will be unduly prejudiced in presenting his case. Whether Respondent Has Complied With the Court’s Rules Petitioner argues that respondent is in violation of Rule 39, which requires that a party set forth in his pleading special matters, including fraud and collateral estoppel. Petitioner argues that respondent pleaded collateral estoppel, but not fraud, in his original answer. However, the answer specifically states: “petitioner is liable for the civil fraud penalty pursuant to I.R.C. section 6663 for taxable years 1996, 1998, and 1999”. In his answer, respondent relies on collateral estoppel. In his motion for leave to file amendment to answer, respondent merely seeks to include the facts necessary for a finding of fraud without reliance on collateral estoppel. As respondent alleged fraud in his answer, he has complied with Rule 39. Petitioner alleges that respondent did not set forth the reasons for the amendment as required by Rule 41(a). However, the motion states that respondent seeks to set forth allegations of facts surrounding the imposition of the civil fraud penalty under section 6663. This is sufficient to comply with Rule 41(a).Page: Previous 1 2 3 4 5 6 7 NextLast modified: March 27, 2008