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merits, we have decided to treat petitioners' motion as a motion
for summary judgment.
Under Rule 121(b), Tax Court Rules of Practice and
Procedure, a motion for summary judgment shall be granted only if
(1) there is no genuine issue as to any material fact and (2) a
decision may be rendered as a matter of law. Petitioners, as the
moving parties, have the burden of showing the absence of a
genuine issue as to any material fact; that is, all doubts as to
the existence of an issue of material fact must be resolved
against the movant. See, e.g., Adickes v. Kress & Co., 398 U.S.
144, 157 (1970); Vallone v. Commissioner, 88 T.C. 794, 801
(1987).
Respondent contends that there is a Form 872, executed
timely by petitioners and respondent, that extended to June 30,
1998, the time to assess tax. Petitioners contend that they did
not execute that Form 872. This is a genuine issue. The matter
of fact thus disputed appears to control the entire statute of
limitations question; thus the fact disputed is a material fact.
There is a genuine issue as to a material fact.
It follows that petitioners have failed to satisfy one of
the requirements for summary judgment, and so summary judgment
will not be granted to petitioners on the statute of limitations
issue. Thus, petitioners' motion shall be denied, even if it is
treated as a motion for summary judgment.
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