Wayne E. and Dorothy E. Wells - Page 13

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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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