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which a representative of the Maryland State Retirement Agency
testified and at which numerous exhibits were offered in evidence
at trial. Moreover, the Transfer Refund case that led to a
published opinion by the Court of Appeals, Adler v. Commissioner,
T.C. Memo. 1995-148, revd. 86 F.3d 378 (4th Cir. 1996), was
decided by this Court after a trial.
Fifth, the decision in Hylton v. Commissioner, supra, became
final before the trial of the present case. If petitioners
regarded their case as presenting nothing other than a pure issue
of law, they could have agreed to entry of decision on the basis
of Hylton and then appealed. Instead, petitioners went forward
at trial on the theory that the Transfer Refund was not made
pursuant to Maryland State law, but rather pursuant to an
administrative policy that required petitioner to retire in order
to receive the Transfer Refund. Petitioners' strategy was
obviously to present a theory that might serve to distinguish
their case from Hylton, Brown, Dorsey, and Adler and thereby
avoid the need to appeal. However, the fact that petitioners'
strategy was unsuccessful does not mean that respondent's
position was unreasonable.
Finally, we do not think that respondent was under any
obligation to move for summary judgment. Indeed, respondent
thought that there were genuine issues of material fact. And the
reasonableness of respondent's view as to the existence of
disputed factual issues is demonstrated, if by no other fact, by
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