                        T.C. Memo. 1999-115



                      UNITED STATES TAX COURT



           ESTATE OF CHARLES B. GRANT, JR., DECEASED,
         CHARLES B. GRANT, III, EXECUTOR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13427-98.                       Filed April 6, 1999.


     Jo Karen Parr, for petitioner.

     Linda K. West, for respondent.



                        MEMORANDUM OPINION

     GERBER, Judge:   We consider here petitioner’s motion to

amend the petition.   Respondent has objected on the ground that

the subject matter of the proposed amendment is not relevant.    We

therefore consider whether the relevance of the matter pleaded is

prerequisite to our granting leave to amend a pleading.
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     Unless otherwise stated, all Rule references are to the

Court’s Rules of Practice and Procedure.

     In response to a notice of deficiency dated May 1, 1998, the

petition contained allegations of error concerning respondent’s

valuation of stock and concerning respondent’s determinations

that the decedent made gifts to the shareholders of a corporation

and that life insurance proceeds are includable in his gross

estate.

     Petitioner now seeks leave to amend the petition to include

facts learned from Freedom of Information Act requests

approximately 5 months after the original petition was filed.

The facts alleged in the proposed amendment were derived from the

examining agent’s report on the valuation of the stock at issue

in the deficiency notice.    Respondent objects to petitioner’s

proposed amendment on the ground that such matters are

irrelevant.

      Rule 41(a) provides:    “A party may amend a pleading once as

a matter of course at any time before a responsive pleading is

served.   * * *   Otherwise a party may amend a pleading only by

leave of Court or by written consent of the adverse party”.    Rule

41(a) further provides that leave to amend “shall be given freely

when justice so requires.”    This Court has looked to cases

decided under rule 15(a) of the Federal Rules of Civil Procedure

for guidance on the interpretation of Rule 41(a).    See Kramer v.
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Commissioner, 89 T.C. 1081, 1084-1085 (1987).     Like Rule 41(a),

rule 15(a) of the Federal Rules of Civil Procedure mandates that

leave to amend “shall be freely given when justice so requires.”

     In this case, the motion for leave was not filed before the

responsive pleading, and respondent has not consented to the

motion.   The Court may use its discretion to grant petitioners

leave to amend.   See Kramer v. Commissioner, supra at 1085.      In

exercising that discretion, the courts consider various factors,

including the timeliness of the motion, the reasons for the

delay, and whether granting the motion would result in issues

being presented in a seriatim fashion.     See Daves v. Payless

Cashways, Inc., 661 F.2d 1022, 1024 (5th Cir. 1981).     Leave to

amend may be inappropriate where there is undue delay, bad faith,

prejudice resulting from the amendment, or a dilatory motive of

the movant.   See Foman v. Davis, 371 U.S. 178, 182 (1962); Russo

v. Commissioner, 98 T.C. 28, 31 (1992).

     The liberal attitude towards amendment is reflective of the

liberal policy generally applied to pleadings.     “The Federal

Rules reject the approach that pleading is a game of skill in

which one misstep by counsel may be decisive to the outcome and

accept the principle that the purpose of pleading is to

facilitate a proper decision on the merits.”     Conley v. Gibson,

355 U.S. 41, 48 (1957).   Rather, pleadings should be construed to

do “substantial justice.”   Id.    Even where, as here, the
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complaint may contain unnecessary detail and evidentiary matter,

the most important requirement of the pleadings is that the

opposing party be made aware of the claims he will be called upon

to meet.    See Kamen Soap Prods. Co. v. Struthers Wells Corp., 159

F. Supp. 706, 713 (S.D.N.Y. 1958).      Though certain evidentiary

facts may be unnecessary to a complaint, they may remain in the

complaint unless they are prejudicial.      Groves v. Paden City

Glass Manufacturing Co., 2 F.R.D. 300, 301 (1942).      The liberal

policy of pleadings allows parties to introduce issues that may

be more fully developed in the pretrial process.

     Respondent has not accused petitioner of any inappropriate

practice, such as delay, bad faith, or dilatory motive, in moving

to amend.   Nor has respondent shown that the proposed amendment

would prejudice respondent in any respect.      To the contrary,

respondent contends that the amendment would have no effect on

the outcome of this action.    We see no reason to deny petitioner

leave to amend its petition.

     Because of the reference to “irrelevancy,” it is unclear if

respondent meant to make a motion under Rule 52 to strike a

portion of the pleadings as amended.      Rule 52 permits a party,

within certain time limits, to move to strike “any insufficient

claim or defense or any redundant, immaterial, impertinent,

frivolous, or scandalous matter.”    Rule 52 was derived from rule

12(f) of the Federal Rules of Civil Procedure, and the Federal
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Rules of Civil Procedure will be considered in applying Rule 52.

Estate of Jephson v. Commissioner, 81 T.C. 999, 1000-1001 (1983);

see also Note to Tax Court Rule 52, 60 T.C. 1093.

     In Estate of Jephson v. Commissioner, supra at 1001, we set

forth various principles, along with citations (omitted here), to

be followed in connection with motions to strike, as follows:

          Motions to strike under FRCP 12(f) have not been
     favored by the Federal courts. “Matter will not be
     stricken from a pleading unless it is clear that it can
     have no possible bearing upon the subject matter of the
     litigation.” “A motion to strike should be granted
     only when the allegations have no possible relation to
     the controversy. When the court is in doubt whether
     under any contingency the matter may raise an issue,
     the motion should be denied.” If the matter that is
     the subject of the motion involves disputed and
     substantial questions of law, the motion should be
     denied and the allegations should be determined on the
     merits. In addition, a motion to strike will usually
     not be granted unless there is a showing of prejudice
     to the moving party. [Citations omitted.]

     As discussed above, respondent does not allege that any

prejudice will occur if petitioner is allowed to amend the

petition to include the new factual allegations.    There appear to

be no new issues raised by or with these factual allegations, and

respondent appears not to question the truth of the allegations.

Respondent questions only the legal weight or relevancy that

should be given to those alleged facts.   Respondent’s objection

to allegations concerning the examination agent’s conclusions

about the stock valuation is premature.   We cannot decide at this

juncture that petitioner’s allegations can have no possible
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bearing upon the subject matter of the litigation.    To pursue

further evidence about the relevancy of the disputed facts at

this time would be contrary to interests of judicial economy.

     For the above reasons, petitioner’s motion to amend the

petition will be granted.


                                      An appropriate order will be

                              issued.
