- 20 -
exist. Jacklin v. Commissioner, 79 T.C. 340, 344 (1982).
All reasonable inferences must be drawn in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-250 (1986); Naftel v. Commissioner, 85 T.C. 527,
529 (1985).
Once a motion for summary judgment is properly
supported, the adverse party may not rest on its pleadings.
Rather, the nonmoving party must set forth specific facts
showing that there is a genuine issue for trial. Rule
121(d); Williams v. Borough of West Chester, 891 F.2d 458
(3d Cir. 1989); Marshall v. Commissioner, 85 T.C. 267, 271
(1985). However, Rule 121(e) provides an exception to the
above Rule. Rule 121(e) provides as follows:
(e) When Affidavits Are Unavailable: If
it appears from the affidavits of a party
opposing the motion that such party cannot
for reasons stated present by affidavit facts
essential to justify such party's opposition,
then the Court may deny the motion or may
order a continuance to permit affidavits to be
obtained or other steps to be taken or may make
such other order as is just. If it appears from
the affidavits of a party opposing the motion
that such party's only legally available method
of contravening the facts set forth in the
supporting affidavits of the moving party is
through cross-examination of such affiants or the
testimony of third parties from whom affidavits
cannot be secured, then such a showing may be
deemed sufficient to establish that the facts set
forth in such supporting affidavits are genuinely
disputed.
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