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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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