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barred by the period of limitations under section 6511(b)(2)(A)
since the claim for refund, made on the untimely return, was
filed more than 3 years from the time the tax was paid. The
Court agrees with respondent.
The standard for granting a motion for summary judgment is
stated in Rule 121(b):
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 believed, 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
favoring the nonmoving party 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. Rule 121(d)
provides that, when a properly supported motion for summary
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