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the taxpayer had never claimed and determined a deficiency at the
highest marginal tax rate. In the notice of deficiency, it was
stated that the taxpayer's income tax return was not available,
and that the deficiency was determined at the maximum rate of 70
percent to protect the Government's interest but would be
corrected whenever the original return was received or whenever
the taxpayer would send a copy of the return. Under these facts,
it was held that the Commissioner had not made a determination of
tax because the notice of deficiency, on its face, revealed that
it had been issued without any prior inspection of the taxpayer's
income tax return. See also Kong v. Commissioner, T.C. Memo.
1990-480.
In the present case, respondent made an examination of
petitioner's tax return. Not only did respondent examine the
return, there were communications between respondent's examining
agent and petitioner with respect to the adjustment at issue.
There is no language in the notice of deficiency that indicates
that respondent failed to make a determination or failed to
examine petitioner's return. Moreover, the fact that the
determination in the notice of deficiency may ultimately be held
to be erroneous does not invalidate the notice of deficiency.
Hannan v. Commissioner, 52 T.C. 787, 791 (1969); Stevens v.
Commissioner, 709 F.2d 12, 13 (5th Cir. 1983), affg. T.C. Memo.
1982-352. On this record, petitioner has failed to establish
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