Opinion
22732-19
01-10-2022
JAMES P. CARNEY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Patrick J. Urda Judge
On October 28, 2021, the Commissioner filed a motion for leave to file first amendment to answer, lodging with it the first amendment to answer. The Commissioner requests that we permit him to amend his answer to assert against Mr. Carney an increased deficiency and a penalty under I.R.C. § 6662(a) based upon a newly discovered alleged constructive distribution to Mr. Carney in 2015. Mr. Carney opposes the motion, arguing, inter alia, that the Commissioner's recitation of the facts underlying the constructive distribution is erroneous and incomplete. He further requests a telephonic hearing to discuss the motion.
We will grant the Commissioner's motion and deny Mr. Carney's request for a hearing. Tax Court Rule 41 provides that leave to amend "shall be given freely when justice so requires." As part of this determination, we evaluate factors including undue delay, prejudice to the nonmoving party, and futility of the amendment. This case has not been set for trial, and Mr. Carney will have an opportunity to respond to the proposed amendment. Moreover, Mr. Carney will have the chance to demonstrate factual shortcomings underlying the amendment through discovery and further proceedings in this Court. It is therefore
ORDERED that the Commissioner's motion for leave to file first amendment to answer, filed October 28, 2021, is granted and that the Commissioner's first amendment to answer, lodged on October 28, 2021, is filed as of the service date of this Order.