Opinion
32737-21L
07-26-2022
SHELLY TEMPELMAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Courtney D. Jones, Judge.
This case is on the calendar for trial at the session of the Court scheduled to commence at New York, New York on September 19, 2022. On July 20, 2022, respondent filed a Motion for Summary Judgment and the Declarations of Thomas Burke and Andrea Ipson in support thereof. The Court will direct petitioner to file a response to respondent's motion.
If petitioner disagrees with the facts set out in respondent's motion, then the response should point out the specific facts in dispute. If petitioner disagrees with respondent's argument as to the law, then the response should also set out their 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 Guidance for Petitioners: Starting A Case (ustaxcourt.gov) and are printed on the page attached to this order. Likewise, the Court attached to its May 12, 2022, Notice of Trial a list of tax clinics in your area that may represent petitioners free of charge if they meet certain qualifications.
Petitioner should note that Tax Court 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 petitioners. Upon due consideration, it is
ORDERED that, on or before August 16, 2022, petitioner shall file a response or objection 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.