Petitioners resided at Columbus, Georgia, when they filed their petition herein. The procedural history of this case is as follows: Respondent filed a Motion for Protective Order on August 29, 1991, in which she requested relief from petitioners' document entitled "First Interrogatories and Request to Admit to Respondent". Respondent contended that discovery was premature, there having been no attempt at informal discovery. Respondent further contended that under our Rule 70(a)(2), discovery should not be commenced, without leave of Court, before the expiration of 30 days after joinder of issue. Petitioners' discovery requests were filed within the 30-day period. We granted respondent's Motion for a Protective Order on October 4, 1991. In our order we stated:
Petitioners have not shown that, prior to undertaking formal discovery, they in good faith exhausted all efforts toward informal discovery within the intendment of this Court's Rules and .
Respondent's motion for a protective order and our order went to both the request for answers to interrogatories and the request for admissions served by petitioners. The request for admissions was prematurely filed and is of no effect. Respondent has not admitted that an amended return apparently mailed by petitioners to respondent is correct, and at the hearing upon petitioners' motion for summary judgment, at which petitioners failed to appear, respondent advised the Court that the amended return had not been accepted for filing. We may grant summary judgment only where it is clear that there is no genuine issue as to any material fact, and a decision may be rendered as a matter of law. Rule 121(b). There are material issues of fact still to be decided, and the original motion for summary judgment will be denied.
Petitioners' amended motion for summary judgment will also be denied as there are open material issues of fact still to be decided in this matter. There is no statutory authority for the filing of amended income tax returns, and the acceptance of amended returns rests within the discretion of the Commissioner. . Respondent has not chosen to accept petitioners' amended 1988 return. Even if she had done so, we note that the deficiency notice would still remain valid. There are material issues of fact still present in this case, and, accordingly, petitioners' motions for summary judgment will be denied.
We warn petitioners once again that the Rules of this Court and our decision in , require the parties to enter into a good faith effort at informal discovery. We note that the Court might well have dismissed this matter against petitioners for lack of proper prosecution due to their failure to appear at the calendar call. We will restore the case to the general docket for calendaring for trial in due course.
An appropriate order will be issued.