Steven H. Toushin - Page 10

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               Petitioner further argues that even if the Court is                    
          persuaded that he understated his income, reporting the income on           
          the Savage return negates, as a matter of law, fraudulent intent            
          on his part.                                                                
               Respondent's argument in reply does not address petitioner's           
          allegation that there is no understatement of tax.  She frames              
          the question to be decided solely as an issue of intent.                    
          According to respondent, there is a genuine issue of material               
          fact as to petitioner's fraudulent intent in filing his 1982 Form           
          1040.  Since intent is at issue, respondent concludes that the              
          matter is not appropriate for summary judgment.                             
          Standard for Granting Summary Judgment                                      
               The standard for granting a motion for summary judgment                
          under Rule 121 is stated in the rule itself.                                

               A decision shall * * * be rendered 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).]17                   

               The moving party has the burden of "showing" the absence of            
          a genuine issue as to any material fact.  See Espinoza v.                   
          Commissioner, 78 T.C. 412, 416 (1982) and cases cited therein.              


          17Rule 121 is derived from Fed. R. Civ. P. 56.  Therefore,                  
          authorities interpreting the latter will be considered by the               
          Court in applying our Rule.  Espinoza v. Commissioner, 78 T.C.              
          412, 415-416 (1982).                                                        




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