U.S. Bancorp, Successor In Interest to West One Bancorp and Subsidiaries, formerly known as Moore Financial Group, Inc. - Page 24

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          VI.  Holdings                                                               
               For all the reasons set forth above, we reject respondent's            
          arguments, apply stare decisis, follow Security Bank Minn. v.               
          Commissioner, supra, and Security State Bank v. Commissioner,               
          supra, and hold that section 1281(a) does not apply to IFNB's               
          short-term consumer, commercial, and agricultural loans made to             
          its customers.  However, we hold that genuine issues of material            
          fact exist--which issues must be resolved by a trial or obviated            
          by agreement of the parties--before the proper tax treatment of             


               20(...continued)                                                       
          exist--and has declined to grant summary judgment for either                
          party--where cross-motions have been made.  See Estate of                   
          Wilbanks v. Commissioner, 94 T.C. 306, 315-316 (1990); Krause v.            
          Commissioner, 92 T.C. 1003, 1026-27 (1989); Take v. Commissioner,           
          supra; Burford v. Commissioner, T.C. Memo. 1984-466.                        
               The same approach has been used by courts deciding cross-              
          motions for summary judgment under the analogous Federal rule,              
          Fed. R. Civ. P. 56.  As has been stated by one of the leading               
          treatises on Federal civil procedure:                                       
                         When litigants concurrently pursue                           
                    summary judgment, the first impression of the                     
                    uninitiated is often that at least one party                      
                    inevitably will be victorious and obtain                          
                    summary judgment.  However, this seemingly                        
                    intuitive impression is incorrect.  * * *                         
                    Each individual summary judgment motion must                      
                    be evaluated independently to determine                           
                    whether there exists a genuine dispute of                         
                    material fact and whether movant is entitled                      
                    to judgment as a matter of law.  [11 Moore's                      
                    Federal Practice sec. 56.10[6] (3d ed. 1998)                      
                    at 56-57; fn. ref. omitted.]                                      
          See also 10A Wright et al., Federal Practice & Procedure:  Civil            
          sec. 2720 (3d ed. 1998), and the cases cited therein.                       




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