- 8 -
material fact and that a decision may be rendered as a matter of
law." Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C.
518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.
Commissioner, 90 T.C. 753, 754 (1988); Naftel v. Commissioner, 85
T.C. 527, 529 (1985). The moving party bears the burden of
proving that there is no genuine issue of material fact, and
factual inferences will be read in a manner most favorable to the
party opposing summary judgment. Dahlstrom v. Commissioner, 85
T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344
(1982).
Respondent argues for partial summary judgment on the basis
that petitioner remained a Life Care partner until June 30, 1990.
Respondent contends that the "clear and unambiguous" terms of the
settlement agreement executed January 12, 1989, and the sale
agreement executed June 30, 1990, support her position. Further,
respondent contends that petitioner is precluded by the rule
articulated in Commissioner v. Danielson, 378 F.2d 771 (3d Cir.
1967), vacating and remanding 44 T.C. 549 (1965), as adopted by
the Court of Appeals for the Eleventh Circuit in Bradley v.
United States, 730 F.2d 718 (11th Cir. 1984), from offering
evidence to vary or counter the terms of the two agreements.5
5 This case is appealable to the Court of Appeals for the
Eleventh Circuit. Thus, although this Court has declined to
adopt the rule of Commissioner v. Danielson, 378 F.2d 771 (3d
Cir. 1967), vacating and remanding 44 T.C. 549 (1965), see
(continued...)
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