Jesse F. Webb - Page 2

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          summary judgment under Rule 121. Respondent filed her motion for            
          summary judgment on November 17, 1995. By order of this Court,              
          dated November 20, 1995, petitioner was allowed to and including            
          January 4, 1996, within which to file any response to                       
          respondent's motion. On January 3, 1996, petitioner filed his               
          cross-motion for summary judgment.                                          
               The issue presented for summary judgment by both parties is            
          whether petitioner may exclude from income, under section                   
          104(a)(2), amounts petitioner received from his previous employer           
          under the employer's Individual Transition Option Program in                
          exchange for signing a General Release and Covenant Not To Sue.             
          A motion for summary judgment is appropriate "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);           
          O'Neal v. Commissioner, 102 T.C. 666, 674 (1994) (quoting Kroh v.           
          Commissioner, 98 T.C. 383, 389 (1992)). The moving party bears              
          the burden of establishing that this requirement is met, and the            
          factual materials and the inferences to be drawn from them must             
          be viewed in the light most favorable to the party opposing the             
          motion. O'Neal v. Commissioner, supra. The opposing party cannot            
          rest upon mere allegations or denials, but must set forth                   
          specific facts showing there is a genuine issue for trial. Id.              
          In petitioner's cross-motion for summary judgment, he does                  
          not dispute any of respondent's factual allegations; instead he             



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