Kevin Ryan Robinson - Page 5

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          Discussion                                                                  
               Summary judgment is proper “if the pleadings, answers to               
          interrogatories, depositions, admissions, and any other                     
          acceptable materials, together with the affidavits, if any, show            
          that there is no genuine issue as to any material fact and that a           
          decision may be rendered as a matter of law.”  Rule 121(b); Beery           
          v. Commissioner, 122 T.C. 184, 187 (2004).                                  
               The party opposing the motion “may not rest upon the mere              
          allegations or denials of such party’s pleading,” but the                   
          objecting party’s response “must set forth specific facts showing           
          that there is a genuine issue for trial.”  Rule 121(d); see also            
          Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (relating to             
          Fed. R. Civ. P. 56).  Summary judgment is appropriate where the             
          objecting party “fails to make a showing sufficient to establish            
          the existence of an element essential to that party’s case, and             
          on which that party will bear the burden of proof at trial.”  Id.           
          at 322.                                                                     
               However, the burden of establishing the nonexistence of a              
          “genuine issue” is on the party moving for summary judgment, and            
          where the evidentiary matter in support of the motion does not              
          establish the absence of a genuine issue, summary judgment is to            
          be denied even if the objecting party does not submit opposing              
          evidentiary matter.  Adickes v. S.H. Kress & Co., 398 U.S. 144,             
          160 (1970).                                                                 






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