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a. The affidavit of Denis Brody which makes
clear that the Petitioners did not consent
to an extension of the statutory period
with respect to B.D.B.;
b. Respondent's Response To Petitioners'
Request To Admit and Respondent's Response
To Petitioners' Interrogatories. These
documents show that there is no evidence
that Respondent intended to include
adjustments to B.D.B. within the Form
872-A, and that Respondent has no
witnesses who can address the intent of
Respondents at the time the documents were
executed;
c. Portions of Respondent's file, which show
that the Respondent had every available
document necessary to show to the agent
that Petitioner was a partner in B.D.B.,
and not Thunderbird. More importantly,
the documents requesting information of
Petitioner do not even refer to Thunderbird.
At the hearing of petitioners' cross-motion for
summary judgment, petitioners' attorney formulated their
position in the following terms:
Our position is that we [are] addressing the same
issue [as the issue decided in Brody I] but that
it has not been resolved by the Court, by this
Court's prior memorandum opinion because there
are additional facts from which we are asking the
Court to reach a contrary conclusion and these
facts are very simple and we believe that they
are significant enough to justify this Court
rendering an opposite conclusion, and those facts
are as follows: the fact that no other partner
of the BDB Partnership was requested to sign a
waiver or extension; the fact that there was no
indication in the Respondent's file that the
person who prepared the consent had any
documentation of the existence of the BDB
Partnership or Partnership files; and the fact
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