Ronald J. and Linda Gabriel - Page 6




                                        - 6 -                                         

          February 14, 2000, respondent and counsel for petitioners                   
          appeared and were heard.  Petitioners orally moved for a summary            
          judgment in their favor.                                                    
          Summary Judgment                                                            
               Pursuant to Rule 121(b), a summary adjudication may be made            
          “if the pleadings, answers to interrogatories, depositions,                 
          admissions, and any other acceptable materials, together with the           
          affidavits, if any, show that there is no genuine issue as to any           
          material fact, and that a decision may be rendered as a matter of           
          law.”  The party opposing the motion cannot rest upon the                   
          allegations or denials in his pleadings, but must “set forth                
          specific facts showing that there is a genuine issue for trial.”            
          Rule 121(d).  The moving party bears the burden of proving that             
          there is no genuine issue of material fact, and factual                     
          inferences will be read in a manner most favorable to the party             
          opposing summary judgment.  See Jacklin v. Commissioner, 79 T.C.            
          340, 344 (1982).  There is no genuine issue as to any material              
          fact with respect to the specific legal issue before us; thus,              
          this matter is ripe for judgment on the issue as a matter of law.           
          See Rule 121(d).                                                            
               Respondent contends that petitioners may not exclude pension           
          payment amounts received from the city during the year in issue             
          from gross income because the amounts were not received under a             
          worker’s compensation act pursuant to section 104(a)(1), or a               






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