Opinion
7055-22L
02-07-2023
JULIAN A. MYERS, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Tamara W. Ashford, Judge.
This case is currently calendared for trial at the Session of the Court commencing on April 17, 2023, in Winston-Salem, North Carolina. On January 30, 2023, respondent filed a Motion for Summary Judgment, along with a Declaration of Halvor R. Melom in Support of Motion for Summary Judgment. In the motion respondent states that (1) he emailed petitioner to inform him of his intent to file the motion, (2) explain the consequences of the motion being granted, and (3) invite him to state whether he objects or not to the granting of the motion; petitioner did not respond. Upon due consideration, the Court will order petitioner to file a response to respondent's motion.
If petitioner disagrees with the facts set out in respondent's Motion for Summary Judgment, then his response should point out the specific facts in dispute. If petitioner disagrees with respondent's argument as to the law, then his response should also set out his position on the disputed legal issues. Q&As that the Court has prepared on the subject "What is a motion for summary judgment? How should I respond to one?" are available at https://ustaxcourt.gov/petitioners start.html#START39 and are printed on the page attached to this order.
Petitioner should note that Tax Court Rule 121(d) provides that "[i]f the adverse party [i.e., petitioner in this case] does not so respond [to a motion for partial summary judgment], then a decision, if appropriate, may be entered against such party" -- i.e., against petitioner.
To resolve respondent's Motion for Summary Judgment, it is hereby
ORDERED that, on or before March 9, 2023, petitioner shall file with the Court and serve on respondent a response to respondent's Motion for Summary Judgment.
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 on which you rely.
Your evidence. Your supporting evidence may include your own sworn affidavit or unsworn declaration given under penalty of perjury. (Form 18, Unsworn Declaration 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 your 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. Similarly, if you file a motion for summary judgment and it is granted, then there will be no trial, and a judgment will be entered in your favor.