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compensable "taking" does not ensure or confirm that Lakewood
will in fact secure such a remedy given the administrative
realities of wetlands regulation. In light of petitioner's
allegations concerning COE's administrative practices, we
conclude that a genuine issue as to a material fact remains in
dispute with regard to Lakewood's prospects for a recovery.5 For
these reasons, we conclude that the question of whether Lakewood
sustained a loss within the meaning of section 165(a) in this
case is not ripe for disposition by summary judgment.
To reflect the foregoing,
An order denying respondent's
Motion for Summary Judgement
will be issued.
5 Because this matter is before us on respondent's motion
for summary judgment, the inferences that we draw from the
underlying facts are viewed in the light most favorable to
petitioner, the party opposing the motion. Dahlstrom v.
Commissioner, 85 T.C. 812, 821 (1985).
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