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2. Neither Honore nor her Estate had a claim
to have the marital trust created under Article
Sixth of Ovide's will funded with more than the
pecuniary amount allowed as a marital deduction
in the estate tax proceeding in her husband's
estate; and
3. Neither Honore nor the Estate had a claim
under EPTL to compel funding of her pecuniary
trust with interest at the legal rate.
Respondent opposes petitioners' motion. The Commissioner
has also filed a cross-motion for partial summary judgment,
which addresses the same substantive issue as petitioners'
second request above. Respondent seeks a ruling that "The
marital trust is entitled to share in a representative
portion of the appreciation of Ovide's estate occurring
during the period of administration".
Rule 121(b) of the Tax Court Rules of Practice and
Procedure provides that a motion for summary judgment shall
be "rendered if the pleadings, answers to interrogatories,
depositions, admissions, and any other acceptable
materials, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that
a decision may be rendered as a matter of law." All Rule
references are to the Tax Court Rules of Practice and
Procedure, unless noted otherwise. The burden of proof on
a motion for partial summary judgment is on the moving
party to show that no genuine issues of material fact
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