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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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