Magdalena Pacheco - Page 15




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         Commissioner, T.C. Memo. 2002-285.  Therefore, Mr. Leiba’s                   
         failure to inform petitioner that she could seek relief under                
         subsection (c) is insufficient to overcome the bar of res                    
         judicata.                                                                    
              Petitioner’s counsel contends that a month before Mr.                   
         Pacheco’s death, petitioner and Mr. Pacheco had “definitively                
         settled” the taxes for 1995 and 1996 with RA Lunny.  On April 25,            
         2000, RA Lunny completed the tax examination report, and the file            
         was sent to the Appeals Office.  Petitioner’s counsel argues that            
         the prior proceeding effectively concluded at the point when the             
         file left RA Lunny’s office.  Therefore, petitioner did not have             
         an opportunity to raise relief under subsection (c) in the prior             
         proceeding.                                                                  
              RA Lunny testified that his role was to make                            
         recommendations, and it was up to the Appeals Office to “make the            
         final call” on whether to accept them.  The Court, after                     
         reviewing the evidence presented by petitioner and respondent,               
         agrees with respondent that the prior proceeding was not final at            
         the time the file left RA Lunny’s office.                                    
              Petitioner could have raised relief under subsection (c) in             
         the prior proceeding at any time between Mr. Pacheco’s death on              
         May 22, 2000, and the entry of the decision document on June 29,             
         2000.  Even after the decision has been entered, under Rule 162,             
         petitioner could have moved to vacate the decision within 30 days            







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