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A decision shall * * * be rendered 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).]
The moving party has the burden of showing the absence of a
genuine issue as to any material fact. See Espinoza v.
Commissioner, 78 T.C. 412, 416 (1982) (and cases cited therein).
The evidence of the nonmovant is to be considered in the
light most favorable to him, and all justifiable inferences are
to be drawn in his favor. Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-159 (1970). There is, however, no issue for trial
unless there is sufficient evidence for the finder of fact to
find in favor of the nonmoving party. First Natl. Bank v. Cities
Serv. Co., 391 U.S. 253, 288-289 (1968). The nonmovant’s
evidence must be more than merely colorable. Dombrowski v.
Eastland, 387 U.S. 82, 84 (1967) (per curiam). If the
nonmovant’s evidence is not significantly probative, summary
judgment may be granted. First Natl. Bank v. Cities Serv. Co.,
supra at 290.
Respondent argues that as a matter of law petitioners’
argument concerning whether stock was section 1244 stock was a
potential issue in the prior Tax Court litigation and is
precluded from litigation in this case due to statutory and
caselaw principles. The Court agrees with respondent.
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