Opinion
27195-21
03-30-2023
OSCAR GASTELUM, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Joseph W. Nega Judge
This case is calendared for trial at the Court's May 15, 2023, San Diego, California, trial session. On February 28, 2023, respondent filed a Motion for Leave to File Out of Time First Amendment to Answer and lodged a First Amendment to Answer. By Order served March 3, 2023, the Court ordered petitioner to respond to the above-referenced motion. To date, no response has been received.
Rule 41(a), Tax Court Rules of Practice and Procedure, provides that, except in certain circumstances not relevant here, a party may amend a pleading only by leave of Court or written consent of the adverse party, and "leave shall be given freely when justice so requires." This rule reflects "a liberal attitude towards amendment of pleadings." Shang v. Commissioner, T.C. Memo 2008-69, 95 T.C.M. (CCH) 1256, 1257 (citation omitted). However, the decision of whether to grant such a motion lies within the sound discretion of the Court. Estate of Quick v. Commissioner, 110 T.C. 172, 178 (1998); Law v. Commissioner, 84 T.C. 985, 990 (1985). When evaluating a motion to amend, important factors include "whether an excuse for the delay exists and whether the opposing party would suffer unfair surprise, disadvantage, or prejudice if the motion to amend were granted." Estate of Quick, 110 T.C. at 178. Even when trial was less than two months away, this Court has been reversed for not granting respondent leave to amend. See Gulig v. Commissioner, 293 F.3d 279 (5th Cir. 2002), aff'g in part and rev'g in part 115 T.C. 478 (2000).
Rule 41(a) is similar to Rule 15(a) of the Federal Rules of Civil Procedure, and both state that leave is to be freely given when justice so requires. In interpreting this language, the Supreme Court has held that "[i]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S.178, 182 (1962).
Upon due consideration and for cause, it is
ORDERED that respondent's Motion for Leave to File Out of Time First Amendment to Answer, filed February 28, 2023, is granted, and the Clerk of the Court shall file respondent's First Amendment to Answer, lodged February 28, 2023, as of the date of this order.