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deficiency in petitioners' Federal income tax of $22,553 for the
taxable year 1992, and an addition to tax under section
6651(a)(1) of $100 for failure to timely file. The term
"petitioner" refers to Neil D. Lubart.
The issue for decision is whether petitioner may exclude
from gross income under section 104(a)(2) amounts received from
his employer upon termination of his employment on the ground
that such amounts represented damages received on account of
personal injury. At the time the petition in this case was
filed, petitioners resided in Austin, Texas.
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); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), affd. 17 F.3d 965 (7th Cir. 1994). The moving party
bears the burden of proving that there is no genuine issue of
material fact, and factual inferences are viewed in the light
most favorable to the nonmoving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962); Preece v. Commissioner, 95 T.C.
594, 597 (1990). The opposing party cannot rest upon mere
1(...continued)
otherwise indicated. All dollar amounts are rounded to the
nearest dollar, unless otherwise indicated.
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