Joyce M. and Thomas J. Hamm - Page 2

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               Respondent determined a deficiency in petitioners' 1992                
          Federal income tax in the amount of $21,714.06 and an addition to           
          tax pursuant to section 6651(a)(1) in the amount of $92.61.                 
               In support of respondent's motion for summary judgment,                
          respondent filed an affidavit along with exhibits.  Petitioners             
          filed a written response and submitted an affidavit and an                  
          exhibit opposing respondent's motion.                                       
               After a concession,2 the issue to be decided is whether                
          petitioners may exclude from income, pursuant to section                    
          104(a)(2), a payment that petitioner Thomas J. Hamm (petitioner)            
          received from his employer 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)               
          (citing Kroh v. Commissioner, 98 T.C. 383, 389 (1992)).  The                
          moving party bears the burden of establishing that these                    
          requirements are met.  O'Neal v. Commissioner, supra at 674, and            

          2    Petitioners have not contested respondent's determination              
          that petitioners are liable for the sec. 6651(a)(1) addition to             
          tax in the amount of $92.61.  Accordingly, we consider                      
          petitioners to have conceded the issue.  Rybak v. Commissioner,             
          91 T.C. 524, 566 (1988).                                                    

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