Joseph Giamelli - Page 7




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          did not include a copy of the letters to administer the estate,             
          we are satisfied on counsel’s representation that Mrs. Giamelli             
          has been appointed the executrix of her husband’s estate and that           
          she wishes to continue with his petition in that capacity.                  
               Accordingly, because we find that Mrs. Giamelli wishes to be           
          substituted for Mr. Giamelli, in her capacity as the executrix of           
          Mr. Giamelli’s estate, an appropriate order will be entered                 
          amending the caption of this case.   Further, respondent’s motion           
          to dismiss for lack of prosecution will be denied.                          
          II.  Motion for Summary Judgment                                            
               Respondent has also filed a motion for summary judgment                
          pursuant to Rule 121(a).  Respondent argues for summary judgment            
          on the grounds that the Appeals officer properly exercised her              
          discretion in rejecting the proposed installment agreement and              
          sustaining the proposed collection action because Mr. Giamelli              
          was not in compliance with his current tax obligations.                     
               Summary judgment is intended to expedite litigation and                
          avoid unnecessary and expensive trials.  Fla. Peach Corp. v.                
          Commissioner, 90 T.C. 678, 681 (1988).  Summary judgment may be             
          granted where there is no genuine issue of any material fact and            
          a decision may be rendered as a matter of law.  Rule 121(a) and             
          (b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520                 
          (1992), affd. 17 F.3d 965 (7th Cir. 1994).  The moving party                
          bears the burden of proving that there is no genuine issue of               







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