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vacated; find the determination arbitrary, capricious, not
supported by the evidence, and unreasonable; vacate the January
23, 2003, determination; award petitioner costs and fees incurred
in the prosecution of this action; and afford such other relief
as the Court deems just and proper.5
After the pleadings were closed in this case, respondent on
August 26, 2004, filed the subject motion for summary judgment
and to impose a penalty. Petitioner filed a response objecting
to respondent’s motion on September 20, 2004. In the response,
petitioner focuses on contentions that respondent’s failure to
permit recording of the hearing necessitates a remand and that
his allegations and supporting affidavit of nonreceipt of the
“Notice of Assessment” require respondent to produce evidence of
proof of mailing.
Discussion
Rule 121(a) allows a party to move “for a summary
adjudication in the moving party’s favor upon all or any part of
the legal issues in controversy.” Rule 121(b) directs that a
decision on such a motion shall be rendered “if the pleadings,
answers to interrogatories, depositions, admissions, and any
other acceptable materials, together with the affidavits, if any,
5 The Court notes that to the extent that the petition seeks
reasonable administrative and/or litigation costs pursuant to
sec. 7430, any such claim is premature and will not be further
addressed. See Rule 231.
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