Glen L. Wittstadt, Jr. and Lynne M. Wittstadt - Page 27

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          petitioners' theory at trial regarding an alleged administrative             
          policy that required petitioner to retire in order to receive the            
          Transfer Refund.15  Accordingly, we do not comprehend how                    
          decision in this case could have been entered pursuant to any                
          motion for summary judgment.                                                 
               In view of the foregoing, we reject petitioners' second                 
          contention.                                                                  
               G. Respondent's Collection Activity                                     
               Finally, petitioners contend that respondent was                        
          unreasonable in pursuing collection of the assessed deficiencies,            
          at least after the Court of Appeals decided Adler v.                         
          Commissioner, 86 F.3d 378 (4th Cir. 1996).                                   
               We begin by recalling that petitioners did not file a bond              
          to stay assessment and collection when they filed their notice of            
          appeal.  Accordingly, respondent was permitted, by law, to assess            
          and collect the deficiencies in income and excise taxes as                   







               15   The pages of objections in each party's post-trial                 
          brief to the other party's proposed findings of fact demonstrate             
          the parties' perception that more than a pure issue of law was               
          involved in this case.                                                       
               We also note that the day after petitioners' counsel entered            
          his appearance in this case, petitioners commenced formal                    
          discovery against respondent.  Again, such action demonstrates               
          petitioners' perception that more than a pure issue of law was               
          involved in this case.                                                       




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