With no explanation, chose the best option from "A", "B", "C" or "D". Court before the first appeal. In that note, the IRS stated that the return of the ADR dividends to IES’s income for tax years 1991 and 1992, should IES be entitled to its claimed capital-loss carrybacks, was not an issue on summary judgment. That was true. It would be a distortion of the IRS’s position to read that one sentence in a footnote in its summary judgment memorandum to constitute a knowing and intelligent relinquishment of its right to raise the defenses of offset and equitable recoupment at some point later in the litigation, when the dividend income might become an issue. The government did raise the defenses, by seeking to amend its answer, when those defenses became an issue in the case after it lost on appeal. Cf. Buder v. United States, 7 F.3d 1382, 1386 (8th Cir.1993) (<HOLDING>). The other proof of waiver to which IES points

A: holding that arguments not raised before the trial court are waived
B: holding that the government did not waive an affirmative defense not pleaded in the answer because it raised the defense at a pragmatically sufficient time by listing the defense in the joint pretrial order
C: holding that failure to plead affirmative defense to original complaint does not amount to waiver where defense is raised in response to amended complaint
D: holding that offset defense was waived when it was not raised until ten days before the trial date and the government never pleaded or amended its complaint to include the setoff defense
D.