Opinion
Leonard P. Moore, U.S. Atty., Brooklyn, N.Y., Lloyd H. Baker, Asst. U.S. Atty., Brightwater, N.Y., for plaintiff.
Sidney Szerlip, Brooklyn, N.Y., for defendant.
RAYFIEL, District Judge.
The Government moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., for summary judgment against the defendant.
This is an action to recover income taxes assessed against the defendant for the years 1944 and 1945 in the sum of $33,900.10. The Government contends that it is entitled to summary judgment because the defendant in his answer does not deny the allegations in the complaint setting forth the assessments, but merely denies that he has knowledge or information sufficient to form a belief as to those allegations.
The defendant, however, has submitted an affidavit in which he categorically denies liability for the alleged assessments. He denies that he received the income on which the assessments were based, contending that it was received by a corporation, of which he was a stockholder, and which was successor to a partnership in which he had an interest.
The Government, in support of the motion, cited the case of United States v. Newhard, D.C., 128 F.Supp. 805. That case is clearly distinguishable from the one at bar. The facts there were undisputed. The defendant herein seriously disputes the Government's contention.
Rule 56(c) provides that a motion thereunder should be granted if it appears 'that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Emphasis added.)
It is clear that there is an issue here as to the receipt by the defendant of the income which forms the basis of the Government's claim. The motion is, therefore, denied.