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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 responded
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