- 13 - withdrawal or modification of the admission." The Rule permits the Court to allow withdrawal or modification of admissions upon the satisfaction of two elements: (1) Presentation of the merits of the case will be subserved; and (2) the party obtaining the admission fails to satisfy the Court that the withdrawal or modification will prejudice such party's litigation of the case. Concerning the first element, this Court has stated that the first precondition to withdrawal or modification requires that the moving party indicate facts tending to refute the deemed admissions. Although the moving party is not required to "try" the case in the moving papers, that party must demonstrate a purpose other than delay; namely, the presentation of competing evidence, which can be accomplished by indicating facts or proposed evidence contrary to or inconsistent with the deemed admissions. New v. Commissioner, 92 T.C. 1146, 1149 (1989); Chapoteau v. Commissioner, T.C. Memo. 1989-37. Though petitioners did not file a Memorandum of Authorities in support of their motion or testify at the hearing, it appears that as grounds for withdrawal or modification of the admissions, petitioners allege their pro se status, that they engaged an attorney after the admissions were deemed admitted, and that it would be inequitable to hold them to the admissions. Petitioners also attached their untimely responses to their Motion To Withdraw Deemed Admissions. Of the 43 requested admissions, petitioners admitted 24, denied 10, and respondedPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011