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originally included in his petition, and has produced no evidence
in support of those assignments, we regard him as having conceded
the factual issues and to be confining himself to his arguments.
Consequently, we will treat respondent's motion to dismiss as one
for summary judgment, and resolve this case through summary
judgment. Fitzpatrick v. Commissioner, T.C. Memo. 1995-548;
Duverseau v. Commissioner, T.C. Memo. 1993-569.22
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. 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); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); 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);
Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
2The fact that matters outside the pleadings help us to
reach the result, even though they are not absolutely necessary,
also induces us to resolve this case through summary judgment.
Consequently, summary judgment is a more appropriate disposition
than dismissal. Behrens v. Pelletier, 516 U.S. , , 1996 WL
71218 (Feb. 20, 1996); Travel All Over the World, Inc. v. Saudi
Arabia, 73 F.3d 1423, 1430 (7th Cir. 1996).
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