Glen L. Wittstadt, Jr. and Lynne M. Wittstadt - Page 25

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          agreed and unagreed facts; however, petitioners declined to                  
          execute either stipulation or to otherwise cooperate in the                  
          process.                                                                     
               Further, petitioners had raised matters that clearly                    
          implicated factual issues.  Thus, petitioners had questioned the             
          effective date of petitioner's election to transfer from the                 
          Retirement System to the Pension System; petitioners had                     
          challenged the validity of that election; and petitioners had                
          raised the fundamental issue of causation; i.e., the reason why              
          the Transfer Refund had been paid.  Indeed, petitioners alleged              
          that "But for his retirement, Mr. Wittstadt would not have                   
          elected to receive the lump-sum payment and no such distribution             
          would have been made."                                                       
               Third, the Court did not deny petitioners' motion with                  
          prejudice.  Thus, petitioners were free to cure the defects as               
          identified by the Court at the hearing on April 20, 1994, and                
          refile their motion.  However, they chose not to do so.14                    
               Fourth, the initial Transfer Refund case, Hylton v.                     
          Commissioner, T.C. Memo. 1995-27, was decided after a trial at               


               14   In addition, submission of the case by the parties on a            
          fully stipulated basis pursuant to Rule 122 provided an                      
          alternative to trial.  However, the record is silent regarding               
          any effort by petitioners to encourage respondent to submit the              
          case on that basis.  We find this curious in view of petitioners'            
          contention that there were no genuine issues of material fact in             
          this case.  We note that Brown v. Commissioner, T.C. Memo. 1995-             
          93, revd. without published opinion per curiam 97 F.3d 1446 (4th             
          Cir. 1996), was decided by this Court on a fully stipulated                  
          basis.                                                                       




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