Alan E. and Harriet R. Lewis - Page 7

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          Cir. 1991).  In fact, in LeFever v. Commissioner, 103 T.C. 525,             
          538 n.16 (1994), we granted respondent's post-trial motion for              
          leave to amend her answer so as to include the affirmative                  
          defense of quasi-estoppel.                                                  
               Under the circumstances of this case and in light of the               
          instruction from the Court of Appeals, we do not believe that               
          petitioners will be unfairly prejudiced by the proposed amendment           
          of the pleadings.  Accordingly, we grant respondent’s motion.               
               As we have granted respondent’s motion to amend her answer,            
          it is necessary that we deny petitioners’ motion for summary                
          judgment.  Summary judgment is intended to expedite litigation              
          and avoid unnecessary costs.  Florida Peach Corp. v.                        
          Commissioner, 90 T.C. 678, 681 (1988).  Summary judgment is                 
          inappropriate if there remains an unresolved genuine issue as to            
          a material fact.  Rule 121(b); Zaentz v. Commissioner, 90 T.C.              
          753, 754 (1988).  Considering our ruling granting respondent’s              
          motion for leave to amend, a genuine issue remains unresolved.              
          Hence, summary judgment is improper.  Accordingly, petitioners’             
          motion is denied.                                                           
               To reflect the foregoing,                                              
                                        An appropriate order will be                  
                                   issued granting respondent’s motion                
                                   and denying petitioners’ motion.                   







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