COURT WILL NOT ISSUE SUMMARY JUDGMENT ON CONSISTENT TREATMENT ISSUE.

The legal issue on which respondent seeks partial summary judgment, generally involving the right of a taxpayer to consistent treatment with other taxpayers, is not fully developed and is not resolved by any existing precedent. Respondent's contention that, in any event, petitioner is not "similarly situated" to another taxpayer requires evidentiary development as well as legal argument. Facts material to the issue that respondent seeks to foreclose are also material to the balance of transfer pricing issues in this case. An order granting respondent's motion would not satisfy the requirements for an interlocutory appeal under I.R.C. section 7482(a)(2)(A), because an immediate appeal from such an order would not materially advance the ultimate termination of the litigation. Thus, resolution of this important issue made in summary fashion would create a risk of mutiplicity of proceedings and delay in ultimate resolution of this case, and granting respondent's motion would undermine the purpose of summary judgment, which is to expedite litigation.

No views on the ultimate merits of the respective positions of the parties are implied by this Order, which is based on the conclusion that summary disposition at this time is neither appropriate nor practicable. Upon due consideration and for cause, it is hereby

ORDERED: That respondent's Motion for Partial Summary Judgment, filed December 23, 2004, is denied.