Thomas R. Camerato - Page 7




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          surveys carried out by respondent, and all policy changes made by           
          respondent in handling audits from 1994 to the present.                     
          I.   Standard for Summary Judgment                                          
               Contrary to petitioner’s objections, summary judgment is not           
          a novel procedure to be employed only with the consent of both              
          parties. We stated in Smith v. Commissioner, T.C. Memo.                     
          1996-292:                                                                   
               Summary judgment is intended to expedite litigation and                
               avoid unnecessary and expensive trials of phantom                      
               factual issues.  Kroh v. Commissioner, 98 T.C. 383, 390                
               (1992); Florida Peach Corp. v. Commissioner, 90 T.C.                   
               678, 681 (1988). Summary judgment may be granted with                  
               respect to all or any part of the legal issues in                      
               controversy "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." Rule 121(b); Sundstrand Corp. v.                       
               Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d                   
               965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C.                   
               753, 754 (1988). * * *                                                 
               Our Rule 121 provides for summary judgment in appropriate              
          cases and follows the basic structure of rule 56 of the Federal             
          Rules of Civil Procedure applied by Federal courts nationwide.              
               The rules permitting summary judgment recognize that trials            
          are necessary when there is a disputed issue of material fact               
          that can properly be resolved only by hearing live testimony.               
          Holding a trial serves no valid purpose when the issues can be              
          resolved as a matter of law on undisputed facts established by              
          affidavits, party admissions and other appropriate evidence.  In            






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