No, not the would-be risqué line of my misspent youth (what a flop that was!), but Special Trial Judge His Honor Lewis (Love That Name) R. Carluzzo letting Al J. (“Big Al”) Schneider III, executor of the estate of Al J. Schneider, Jr., know that he has world enough and time to deal with the IRS’ amended answer and the additional tax and penalties IRS wishes to strew around.

The story is a designated hitter, Estate of Al J. Schneider, Jr., Deceased, Al J. Schneider, III, Executor, Docket No. 4556-10, filed 6/13/13.

The case had been on for trial twice, but each side got an adjournment (which Tax Court calls a continuance), and no date and time certain has been fixed for the main event.

STJ Lewis gives the usual Section 6214(a) bow, stating that IRS has the burden of proof as to the matters pled in the amendment, to wit, the increased deficiency and the penalties. I’d warn Big Al that he shouldn’t get too elated; the Section 6214(a) waltz usually ends with “I decide based upon the preponderance of the evidence, without regard to the burden of proof.”

Howbeit, here’s STJ Lewis: “We acknowledge petitioner’s claims of unfair surprise and prejudice, and appreciate petitioner’s point about the timing of the motion. Nevertheless,we do not share petitioner’s view that respondent’s motion should be denied on those grounds. After all, leave to amend a pleading is ‘to be given freely when justice so requires.’ Rule 41(a).

“According to petitioner, the expert report relied upon by respondent relevant to the matters covered in the amendment to answer was received on January 23, 2013. Petitioner will have had sufficient time to review and respond to that report by the time that the trial, if any, in this case is held.” Order, at pp. 1-2. (Citations omitted).

Apparently Big Al is peeved because IRS waited from January, when they had their expert’s report, until April, when they made their motion to amend. As IRS held back amending, I’d guess Big Al’s trial strategy did not contemplate addressing the increased potential liability or, perhaps, the need to engage other experts to rebut.

Now STJ Lewis says, “you’ve had the report, and trial isn’t next week, so go prepare.”

But I have some sympathy for Big Al’s position. See my blogposts “Don’t Ambush the Indians”, 4/7/11, and “Don’t Ambush the Accountants, Either”, 8/17/11.