Legal Opinion

Derksen v. Commissioner

United States Tax Court

Decided March 7, 1985No. Docket No. 35096-84Published

Rules 30 and 41(a), Tax Court Rules of Practice and Procedure. -- Respondent filed a motion to dismiss for failure to state a claim; subsequently, petitioner sought leave to file an amended petition. Held: Leave to file amended petition is not necessary where no responsive pleading has been filed; motion to dismiss is not a responsive pleading. Rules 41(a) and 30, Tax Court Rules of Practice and Procedure.

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Rules 30 and 41(a), Tax Court Rules of Practice and Procedure. -- Respondent filed a motion to dismiss for failure to state a claim; subsequently, petitioner sought leave to file an amended petition. Held: Leave to file amended petition is not necessary where no responsive pleading has been filed; motion to dismiss is not a responsive pleading. Rules 41(a) and 30, Tax Court Rules of Practice and Procedure. Amended petition relates back to time of filing original petition and will be considered in light of the motion to dismiss. Amended petition fails to state a claim upon which relief can be…

1Opinion of the Court

Roy C. Derksen, Petitioner v. Commissioner of Internal Revenue, Respondent

Derksen v. Commissioner

Docket No. 35096-84

United States Tax Court

84 T.C. 355; 1985 U.S. Tax Ct. LEXIS 113; 84 T.C. No. 25;

March 7, 1985. March 7, 1985, Filed

Rules 30 and 41(a), Tax Court Rules of Practice and Procedure. -- Respondent filed a motion to dismiss for failure to state a claim; subsequently, petitioner sought leave to file an amended petition. Held: Leave to file amended petition is not necessary where no responsive pleading has been filed; motion to dismiss is not a responsive pleading. Rules 41(a) and 30,…

2Cases cited22 opinions

  1. Foman v. DavisSupreme Court of the United States · 1962
  2. Welch v. HelveringSupreme Court of the United States · 1933
  3. Rowlee v. CommissionerUnited States Tax Court · 1983
  4. McCoy v. CommissionerUnited States Tax Court · 1981
  5. Norman E. McCoy and Mary Louise McCoy v. Commissioner of Internal RevenueCourt of Appeals for the Ninth Circuit · 1983

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