Lead Opinion
OPINION
On July 19, 1974, petitioners filed a motion for a summary judgment or, alternatively, for a partial summary judgment under Rule 121, Tax Court Rules of Practiсe and Procedure. On August 30, 1974, respondent filed a memorandum brief opposing petitioners’ motion, and on September 11, 1974, petitioners filed a memorandum brief in reply to respondent.
The issue raised by the pleadings in this case is whether petitioner Norma R. Hoeme must include in her income under section 71(a)(1), I.R.C. 1954,
The divorce suit was captioned Norma Stonestreet v. Ronald O. Stonestreet, docket No. 10,305, and was filed in the District Court of Pratt County, Kans. Shortly before the divorce was granted, the parties entered into a written agreement entitled “Property Settlement Agreement,” which is dated August 21, 1969, and which was incorpоrated into the decree of divorce. Copies of the agreement and the decree of divorce are attached to the petition filed herein. The agreement at page 4 and the decree of divorcе at page 2 each require Ronald to pay Norma $2,500 immediately, $200 per month for 30 months commencing September 1, 1969, and then after the 30 months $150 per month until the sum of the payments equals $25,000. Thus the agreement and the decree require payments of $200 per month from September 1969 through February 1972, and $150 per month from March 1972 through April 1981. Since the payments are to extend over a period of 11 years and 8 months, they are “periodic.” See sec. 71(c)(2). Ronald did in fact make the рayments specified for the years in issue. Such payments totaled $2,400 each year.
In their memorandum brief filed July 19, 1974, petitiоners argue that these payments are not includable in their income under section 71. They apparently concede that the conditions of that section are met with one exception. The contested condition is explained in section 1.71-l(b)(4), Income Tax Regs., as follows:
Section 71(a) applies only to payments made becausе of the family or marital relationship in recognition of the general obligation to support which is made specific by the decree, instrument, or agreement. * * *
Petitioners argue that the payments constituted a property settlеment rather than alimony or support. If they are correct, then the payments are not deductible by Ronald under sеction 215. Although respondent has determined that the payments are taxable to petitioners in this case, he has аlso taken an inconsistent and alternative position in the related case of Ronald O. Stonestreet, docket No. 2737-74,
While we reсognize that each case must stand on its own facts, it would be unusual to find a case involving the issue presented herein whiсh is susceptible of disposition by summary judgment. Such cases typically involve a genuine and material factual issue as tо the intent of the parties. See 6 Moore, Federal Practice, par. 56.15[3] (2d ed. 1948). Consequently, it has been held, on the рarticular facts presented, that the District Court erred in disposing of this same issue by summary judgment. See Phinney v. Mauk,
We observe that the granting of a motion for summary judgment is the exception in Federal practicе. The existence of any reasonable doubt as to the facts at issue must result in the denial of the motion. 6 Moore, Fеderal Practice, par. 56.02[10], p. 2045 (2d ed. 1948). See also United States v. Diebold, Inc.,
On summary judgment the inferences to be drawn from thе underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. * * *
Thе value of a trial with full opportunity to observe the parties and their evidence is obvious. This is especially so where the question of intent is present. Firemen’s Mut. Ins. Co. v. Aponaug Mfg. Co.,
Alternatively, petitioners have moved for a partial summary judgment. Their purpose is to have the Court shift the burden of proof to the respondent because he has taken inconsistent and alternative positions in this case and in the Stonestreet case. It is argued that respondent’s detеrmination in this case is without rational factual or legal basis and is not presumptively correct. The argument is without merit. The law is otherwise. See Leon R. Meyer,
Petitioners are also not entitled to a partial summary judgment for another rеason. The Note to Rule 121 states that the summary judgment procedure is adapted from rule 56(a) and (b), Federal Rules of Civil Procedure. Rule 56 contemplates a summary judgment for a part or all- of the claim made in the prayer for reliеf in the complaint; it does not contemplate a summary judgment on evidentiary matters en route to that relief. 6 Moore, Federal Practice, par. 56.20[3.-2], p. 2751 (2d ed. 1948). Since petitioners’ motion for partial summary judgment -concérhs the shifting of thе burden of proof, it seems to fall within'the ambit of the rule prohibiting summary judgments on .evidentiary matters. Accordingly, we concludе that the motion for partial summary judgment must be denied.
An appropriate order will be entered.
Notes
All statutory references herein are to the Internal Revenue Code of 1954, as amended, unless otherwise indicated.
The instant case was consolidated with the Stonestreet case by this Court’s order dated Aug. 7, 1974.