- 10 -
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).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011