Thomas Gerald Roots and Linda Vesta Roots - Page 6




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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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