Opinion
7054-20S
03-01-2022
Barrie Blueian, Sr. a.k.a. Barrie J. Blueian and Brenda Yadira Blueian Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
James S. Halpern Judge.
By notice of deficiency dated February 18, 2020, respondent determined a deficiency in, and a civil fraud penalty with respect to, petitioners' 2016 Federal income tax. Respondent adjusted petitioners' income by denying itemized deductions claimed by petitioners. Petitioners assigned error to the determination, and respondent answered, denying error and affirmatively pleading civil fraud. Petitioner husband, Mr. Blueian (petitioner), has moved for summary judgment (motion). Respondent objects to our granting the motion. We will deny the motion.
Summary judgment is appropriate "if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits or declarations, if any, show that there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law." Rule 121(b), Tax Court Rules of Practice and Procedure. The moving party bears the burden of proving that no genuine dispute as to any material fact exists, and we will draw any factual inferences in the light most favorable to the nonmoving party. See, e.g., Anonymous v. Commissioner, 134 T.C. 13, 15 (2010).
The principal grounds petitioner advances in support of the motion involve alleged errors by respondent during the examination process. Respondent argues that we should deny the motion because "the motion does not address any of the legal issues in controversy and genuine disputes exist as to the material facts related to the primary issues in this case. Respondent explains: "No facts have been previously admitted into evidence in this case. In addition, Petitioner offered no evidence in his motion, including in the exhibits attached to his motion, to satisfy his burden of proof with respect to whether petitioners are entitled to claim the disallowed itemized deductions for taxable year 2016 or whether they are liable for the civil fraud penalty. In fact, Petitioner did not even offer sufficient evidence to support the non-material theories and allegations he made in the motion . . . ."
We agree with respondent that summary judgment is inappropriate because, with respect to respondent's adjustments to petitioner's income, the fraud penalty, and even petitioner's allegations of errors by respondent during the examination process, there are genuine disputes as to material facts. On February 25, 2022, the parties' filed a joint Motion for Continuance. Therefore, on the premises stated, it is
ORDERED that the motion for summary judgment is denied. It is further
ORDERED that the parties' joint Motion for Continuance is granted, and this case is continued generally. It is further
ORDERED that this case is stricken for trial from the Court's March 28, 2022, Reno, Nevada, trial session.