Opinion
12456-20L
02-22-2022
RICHARD HERBERT FRIEDBERG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Christian N. Weiler Judge
On October 21, 2020, petitioner filed a petition from respondent's (IRS) Notice of Determination Concerning Collection Action. This case is calendared for trial at the Court's trial session at Tampa, Florida commencing on March 28, 2022. On February 11, 2022, respondent filed a motion for leave to file motion for summary judgment and declaration in support, and lodged the motion for summary judgment and declaration. The motion contends that, on the basis of the undisputed facts, the case can be decided in IRS's favor. The motion also advises the Court that petitioner's views on the granting of the motion is unknown. The Court will order petitioner to file a response to IRS's motion for summary judgment.
If petitioner disagrees with the facts set out in IRS's motion, then petitioner's response should point out the specific facts in dispute. The response should support petitioner's version of the facts by attaching relevant documents and/or by attaching one or more affidavits (i.e., written statements that are signed and sworn before a notary) or unsworn declarations that are made "under penalty of perjury" (see 28 U.S.C. sec. 1746). If petitioner disagrees with IRS's argument as to the law, then his response should also set out his position on the disputed legal issues.
Petitioner's attention is directed to Tax Court Rule 121 (available on the Court's website at www.ustaxcourt.gov), which sets out the principles for filing, opposing, and resolving motions for summary judgment. In particular, petitioner should note that Rule 121(d) provides, "If the adverse party (i.e., petitioner) does not so respond [to a motion for summary judgment], then a decision, if appropriate, may be entered against such party"--(i.e., against petitioner).
To resolve IRS's motion for summary judgment, it is
ORDERED that respondent's motion for leave to file motion for summary judgment is granted. It is further
ORDERED that respondent's motion for summary judgment filed on February 11, 2022, shall be taken under advisement. It is further
ORDERED that on March 15, 2022, petitioner shall file a response to respondent's motion for summary. It is further
ORDERED that respondent's motion for summary judgment shall be set for contradictory hearing at March 28, 2022, Tampa, Florida session scheduled to commence at 10:00a.m. (EST) in Room 1201 Timberlake Federal Annex, 501 East Polk Street, Tampa, Florida 33602.
This order constitutes official notice of hearing to the parties. https://www.ustaxcourt.gov/petitioners.html
What is a motion for summary judgment? How should I respond to one?
The motion. A motion for summary judgment requests a ruling from a judge on some or all of the issues in a case before trial. If a motion for summary judgment is filed, the judge will review the documents submitted by the parties and consider whether the case can be decided without a trial. The party filing the motion must show that there is no genuine dispute of any important fact and that the party filing the motion is entitled to judgment in their favor as a matter of law. See Rule 121.
Your response. If the Court orders you to file a response to a motion for summary judgment, your response must: specify which factual statements in the motion for summary judgment you dispute, state what you contend the actual facts are, and cite the specific evidence that you rely on to support your factual contentions. That is, you must do more than deny or disagree with the motion. Instead, you must set forth specific facts that establish there is a factual dispute and that a trial is necessary to resolve that dispute. It is not enough merely to claim that a fact is in dispute. You must support your claim that there is a question about a material fact (or facts) by submitting with your response the evidence you rely on.
Your evidence. Your supporting evidence may include your own affidavit or declaration given under penalty of perjury. Your declaration can state facts about which you have personal knowledge. If your evidence includes documents, then you should submit those with your response (preferably numbered as Exhibits), and your declaration should identify and authenticate those documents. Your supporting evidence may also include other affidavits, stipulations, admissions, answers to interrogatories, or deposition transcripts.
Legal disputes. A motion for summary judgment may involve not only factual disputes but also legal disputes. If you disagree with the IRS's explanation of the law that applies to your case, you should explain your disagreement and cite the statutes, regulations, or other authorities that apply to your case.
Failure to respond. If the IRS files a motion for summary judgment in your case and the Court orders you to file a response, then failure to file a response may be grounds for granting the motion. See Rules 121(d) and 123(b).
Results of summary judgment. If a motion for summary judgment is granted in favor of the IRS, then there will be no trial, and a judgment will be entered against you.