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1 (7/6/12) 87 RULE 121 TITLE XII DECISION WITHOUT TRIAL RULE 120. JUDGMENT ON THE PLEADINGS After the pleadings are closed but within (a) General: such time as not to delay the trial, any party may move for judgment on the pleadings. The motion shall be filed and served in accordance with the requirements otherwise appli- cable. See Rules 50 and 54. Such motion shall be disposed of before trial unless the Court determines otherwise. (b) Matters Outside Pleadings: If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and shall be dis- posed of as provided in Rule 121, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 121. RULE 121. SUMMARY JUDGMENT 1 Either party may move, with or without (a) General: supporting affidavits or declarations, for a summary adju- dication in the moving party’s favor upon all or any part of the legal issues in controversy. Such motion may be made at any time commencing 30 days after the pleadings are closed but within such time as not to delay the trial, and in any event no later than 60 days before the first day of the Court’s session at which the case is calendared for trial, unless oth- erwise permitted by the Court. 2 (b) Motion and Proceedings Thereon: The motion shall be filed and served in accordance with the requirements otherwise applicable. See Rules 50 and 54. An opposing writ- ten response, with or without supporting affidavits or dec- larations, shall be filed within such period as the Court may direct. A decision shall thereafter be rendered if the plead- ings, answers to interrogatories, depositions, admissions, and 1 The amendment imposing a 60-day limit for filing a motion for sum- mary judgment is effective with respect to cases in which the Notices of Trial are issued after May 5, 2011. The amendment pertaining to declara- tions is effective as of July 6, 2012. 2 The amendments are effective as of July 6, 2012. VerDate Mar 15 2010 13:10 Apr 23, 2013 Jkt 000000 PO 00000 Frm 00119 Fmt 2672 Sfmt 2672 G:\GSDD\TAXCOURT\RULE13.RED RULE13 dkrause on DSKHT7XVN1PROD with HEARING

2 (7/6/12) 88 RULE 121 any other acceptable materials, together with the affidavits or declarations, if any, show that there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law. A partial summary adjudication may be made which does not dispose of all the issues in the case. (c) Case Not Fully Adjudicated on Motion: If, on motion under this Rule, decision is not rendered upon the whole case or for all the relief asked and a trial is necessary, the Court may ascertain, by examining the pleadings and the evidence before it and by interrogating counsel, what mate- rial facts exist without substantial controversy and what ma- terial facts are actually and in good faith controverted. It may thereupon make an order specifying the facts that ap- pear to be without substantial controversy, including the ex- tent to which the relief sought is not in controversy, and di- recting such further proceedings in the case as are just. Upon the trial of the case, the facts so specified shall be deemed established, and the trial shall be concluded accordingly. 1 (d) Form of Affidavits or Declarations; Further Testimony; Defense Required: Supporting and opposing affidavits or declarations shall be made on personal knowl- edge, shall set forth such facts as would be admissible in evi- dence, and shall show affirmatively that the affiant or declar- ant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof re- ferred to in an affidavit or a declaration shall be attached thereto or filed therewith. The Court may permit affidavits or declarations to be supplemented or opposed by answers to interrogatories, depositions, further affidavits or declarations, or other acceptable materials, to the extent that other appli- cable conditions in these Rules are satisfied for utilizing such procedures. When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of such party’s pleading, but such party’s response, by affidavits or declarations or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine dispute for trial. If the adverse party does not so respond, then a de- cision, if appropriate, may be entered against such party. 1 The amendments are effective as of July 6, 2012. VerDate Mar 15 2010 13:10 Apr 23, 2013 Jkt 000000 PO 00000 Frm 00120 Fmt 2672 Sfmt 2672 G:\GSDD\TAXCOURT\RULE13.RED RULE13 dkrause on DSKHT7XVN1PROD with HEARING

3 (7/6/12) 89 RULE 122 1 (e) When Affidavits or Declarations Are Unavail- If it appears from the affidavits or declarations of a able: party opposing the motion that such party cannot for reasons stated present by affidavit or declaration facts essential to justify such party’s opposition, then the Court may deny the motion or may order a continuance to permit affidavits or declarations to be obtained or other steps to be taken or may make such other order as is just. If it appears from the affi- davits or declarations of a party opposing the motion that such party’s only legally available method of contravening the facts set forth in the supporting affidavits or declarations of the moving party is through cross-examination of such affiants or declarants or the testimony of third parties from whom affidavits or declarations cannot be secured, then such a showing may be deemed sufficient to establish that the facts set forth in such supporting affidavits or declarations are genuinely disputed. 2 (f) Affidavits or Declarations Made in Bad Faith: If it appears to the satisfaction of the Court at any time that any of the affidavits or declarations presented pursuant to this Rule are presented in bad faith or for the purpose of delay, then the Court may order the party employing them to pay to the other party the amount of the reasonable ex- penses which the filing of the affidavits or declarations caused the other party to incur, including reasonable coun- sel’s fees, and any offending party or counsel may be ad- judged guilty of contempt or otherwise disciplined by the Court. RULE 122. SUBMISSION WITHOUT TRIAL (a) General: Any case not requiring a trial for the sub- mission of evidence (as, for example, where sufficient facts have been admitted, stipulated, established by deposition, or included in the record in some other way) may be submitted at any time after joinder of issue (see Rule 38) by motion of the parties filed with the Court. The parties need not wait for the case to be calendared for trial and need not appear in Court. 1 The amendment is effective as of July 6, 2012. 2 The amendment is effective as of July 6, 2012. VerDate Mar 15 2010 13:10 Apr 23, 2013 Jkt 000000 PO 00000 Frm 00121 Fmt 2672 Sfmt 2672 G:\GSDD\TAXCOURT\RULE13.RED RULE13 dkrause on DSKHT7XVN1PROD with HEARING

4 (7/6/12) 90 RULE 123 The fact of submission of a case, (b) Burden of Proof: under paragraph (a) of this Rule, does not alter the burden of proof, or the requirements otherwise applicable with re- spect to adducing proof, or the effect of failure of proof. RULE 123. DEFAULT AND DISMISSAL (a) Default: If any party has failed to plead or other- wise proceed as provided by these Rules or as required by the Court, then such party may be held in default by the Court either on motion of another party or on the initiative of the Court. Thereafter, the Court may enter a decision against the defaulting party, upon such terms and conditions as the Court may deem proper, or may impose such sanctions (see, e.g., Rule 104) as the Court may deem appropriate. The Court may, in its discretion, conduct hearings to ascertain whether a default has been committed, to determine the deci- sion to be entered or the sanctions to be imposed, or to ascer- tain the truth of any matter. (b) Dismissal: For failure of a petitioner properly to prosecute or to comply with these Rules or any order of the Court or for other cause which the Court deems sufficient, the Court may dismiss a case at any time and enter a deci- sion against the petitioner. The Court may, for similar rea- sons, decide against any party any issue as to which such party has the burden of proof, and such decision shall be treated as a dismissal for purposes of paragraphs (c) and (d) of this Rule. (c) Setting Aside Default or Dismissal: For reasons deemed sufficient by the Court and upon motion expedi- tiously made, the Court may set aside a default or dismissal or the decision rendered thereon. (d) Effect of Decision on Default or Dismissal: A decision rendered upon a default or in consequence of a dis- missal, other than a dismissal for lack of jurisdiction, shall operate as an adjudication on the merits. VerDate Mar 15 2010 13:10 Apr 23, 2013 Jkt 000000 PO 00000 Frm 00122 Fmt 2672 Sfmt 2672 G:\GSDD\TAXCOURT\RULE13.RED RULE13 dkrause on DSKHT7XVN1PROD with HEARING

5 (7/6/12) RULE 124 91 1 RULE 124. ALTERNATIVE DISPUTE RESOLUTION (a) Voluntary Binding Arbitration: The parties may move that any factual issue in controversy be resolved through voluntary binding arbitration. Such a motion may be made at any time after a case is at issue and before trial. Upon the filing of such a motion, the Chief Judge will assign the case to a Judge or Special Trial Judge for disposition of the motion and supervision of any subsequent arbitration. (1) Stipulation Required: The parties shall attach to any motion filed under paragraph (a) a stipulation exe- cuted by each party or counsel for each party. Such stipu- lation shall include the matters specified in subparagraph (2). Content of Stipulation: The stipulation required by (2) subparagraph (1) shall include the following: (A) A statement of the issues to be resolved by the arbitrator; (B) an agreement by the parties to be bound by the findings of the arbitrator in respect of the issues to be resolved; (C) the identity of the arbitrator or the procedure to be used to select the arbitrator; (D) the manner in which payment of the arbitrator’s compensation and expenses, as well as any related fees and costs, is to be allocated among the parties; (E) a prohibition against ex parte communication with the arbitrator; and (F) such other matters as the parties deem to be ap- propriate. (3) Order by Court: The arbitrator will be appointed by order of the Court, which order may contain such direc- tions to the arbitrator and to the parties as the Judge or Special Trial Judge considers to be appropriate. Report by Parties: (4) The parties shall promptly re- port to the Court the findings made by the arbitrator and shall attach to their report any written report or summary that the arbitrator may have prepared. The parties (b) Voluntary Nonbinding Mediation: may move by joint or unopposed motion that any issue in 1 The amendments retitling and restructuring Rule 124 are effective as of May 5, 2011. VerDate Mar 15 2010 13:10 Apr 23, 2013 Jkt 000000 PO 00000 Frm 00123 Fmt 2672 Sfmt 2672 G:\GSDD\TAXCOURT\RULE13.RED RULE13 dkrause on DSKHT7XVN1PROD with HEARING

6 (7/6/12) 92 RULE 124 controversy be resolved through voluntary nonbinding medi- ation. Such a motion may be made at any time after a case is at issue and before the decision in the case is final. Order by Court: The mediation shall proceed in ac- (1) cordance with an order of the Court setting forth such di- rections to the parties as the Court considers to be appro- priate. (2) Tax Court Judge or Special Trial Judge as Medi- ator: A Judge or Special Trial Judge of the Court may act as mediator in any case pending before the Court if: (A) the motion makes a specific request that a Judge or Special Trial Judge be designated as such, and (B) a Judge or Special Trial Judge is so designated by order of the Chief Judge. (c) Other Methods of Dispute Resolution: Nothing contained in this Rule shall be construed to exclude use by the parties of other forms of voluntary disposition of cases. VerDate Mar 15 2010 13:10 Apr 23, 2013 Jkt 000000 PO 00000 Frm 00124 Fmt 2672 Sfmt 2672 G:\GSDD\TAXCOURT\RULE13.RED RULE13 dkrause on DSKHT7XVN1PROD with HEARING

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