¶1concurring: I concur in the majority opinion but disagree with the suggestion therein, in Judge Chabot’s concurring opinion, and in Judge Whitaker’s dissent that but for the presence of a similar issue before this Court for taxable year 1977, the Commissioner’s motion to amend under Rule 41(a), Tax Court Rules of Practice and Procedure, would and should be denied.
¶2Where the Commissioner has been severely delinquent in moving to amend his answer to raise a new issue and where that delinquency results in significant prejudice to the taxpayer, this Court should not be hesitant to deny a motion to amend. However, the facts of this case do not begin to establish any such delinquency or prejudice. On November 29,1982, just 4 y2 months after the petition was filed, the Commissioner notified taxpayers of the issue concerning the video tape tax shelter, and on April 5, 1983, the Commissioner’s motion to amend was filed. No discovery has occurred. No significant pretrial proceedings have occurred due to the dispute over the jurisdictional issue.
¶3Factors which might result in a denial of a motion to amend an answer (e.g., stale evidence, unavailable witnesses or documents, passage of undue time, remoteness in time of taxable years involved in the underlying dispute, or completion of discovery and/or trial) are not present in this case. The majority opinion correctly concludes that the Commissioner’s motion to amend its answer should be granted.