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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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