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of deficiency to petitioner pursuant to section 6501(a). The
notice of deficiency in this case was timely mailed to petitioner
on July 9, 1998.
Material Issues of Fact
Petitioner maintains that we should grant his motion for
partial summary judgment on the ground that respondent has failed
to show that material issues of fact remain in dispute. We
disagree.
Petitioner asserts that respondent is obliged to present
evidence that is "clear, cogent, and convincing beyond any
reasonable controversy" that Ms. Cade either did not execute the
durable power of attorney or that she lacked the requisite mental
capacity to execute the document. Contrary to petitioner's
position, respondent is obliged to present "significant probative
evidence" showing that there is a genuine issue for trial. State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir.
1990); see Rule 121(d). As the moving party, petitioner bears
the ultimate burden of proving that there is no genuine issue of
material fact, and factual inferences will be read in a manner
most favorable to respondent.
Based upon our review of the record, and drawing inferences
in a manner most favorable to respondent, we conclude that
material facts remain in dispute. In particular, respondent has
presented probative evidence (including statements that Ms. Cade
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