Redd v. Commissioner , 66 T.C.M. 1029 ( 1993 )

ED AND FRANCES REDD, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Redd v. Commissioner

Docket No. 27416-90

United States Tax Court

T.C. Memo 1993-475; 1993 Tax Ct. Memo LEXIS 490; 66 T.C.M. (CCH) 1029;

October 18, 1993, Filed

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An appropriate order will be issued denying petitioners' motion for partial summary judgment, as amended.

Ed and Frances Redd, pro se.

For respondent: Gerald L. Brantley.

PARR

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PARR

MEMORANDUM OPINION

PARR, Judge: This case is presently before the Court on petitioners' motion for partial summary judgment pursuant to Rule 121(c),

In closing Petitioners pray that the

- 117 checks bearing teller stamps,

- the 30 checks cashed after petitioner left employment

- all checks cashed while Petitioner was out of state and physically unable to cash any checks

- 2 checks cashed to pay a customer for consignment merchandise

- 12 checks the government conceded on

- 1 check cashed by William J. Koen, Sr. be withdrawn from the 385 checks [that are in issue *492 and, therefore, should be denied because petitioners failed to demonstrate that "there is no genuine issue as to any material fact." As set out below, we agree with respondent's contentions and, therefore, deny petitioner's motion for partial summary judgment.

Discussion

A motion for partial summary judgment should be granted under Rule 121(c) only if the record establishes that no genuine issue of material fact exists with respect to that particular issue and the moving party (petitioners) is entitled to judgment as a matter of law. Rule 121(b). The burden of proof is on the moving party to show that no issue of material fact exists. We view the evidence in the light most favorable to the nonmoving party. ; ; . A motion for summary judgment will be denied if there is any reasonable doubt as to the facts at issue. .

In their motion, petitioners have failed to show that there are no material facts in dispute and that a decision on the legal issues in controversy can be rendered as a matter of law. To the contrary, petitioners' motion clearly states and demonstrates that there are genuine material facts in dispute. Whether or not the checks in dispute were cashed is a factual issue, not a legal issue that can be resolved as a matter of law. Factual disputes can only be resolved by both parties in joint stipulation or by a trier of fact in a court proceeding. Accordingly, a motion for partial summary judgment as to this issue is improper in this case.

To reflect the foregoing,

An appropriate order will be issued denying petitioners' motion for partial summary judgment, as amended.

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Footnotes

• 1. All Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated.↩

• 2. We infer that respondent used the checks in issue to reconstruct petitioners' income.↩