Michael J. Fitzpatrick - Page 5

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            Motion to Dismiss on Ground of Estoppel                                                        
                  Petitioner's first motion to dismiss is predicated on the                                
            argument that respondent is collaterally and equitably estopped                                
            from issuing a notice of deficiency due to the earlier issuance                                
            of the no-change letter to petitioner for the same tax years.                                  
            Petitioner asks that the notice of deficiency be cancelled.                                    
                  Petitioner has not directly raised any issue as to the                                   
            impropriety, under section 7605(b), of a second examination after                              
            the issuance of the reopening letter.  The record does not                                     
            indicate whether a second examination occurred.2  In any event,                                
            even if there was a second examination, the record provides no                                 
            basis for concluding that there was any impropriety.  United                                   
            States v. Powell, 379 U.S. 48 (1964).  Petitioner's emphasis on                                
            the absence of "new information", obtained by respondent after                                 
            the issuance of the no-change letter suggests that he may be                                   
            seeking support for his claim on the basis that respondent                                     
            violated her reopening policy as set forth in Rev. Proc. 85-13,                                
            1985-1 C.B. 514.3  We are not so persuaded.  We think the reasons                              


            2  If there was no second examination, no violation of sec.                                    
            7605(b) occurred.  E.g., Hough v. Commissioner, 882 F.2d 1271                                  
            (7th Cir. 1989), affg. T.C. Memo. 1986-229; Digby v.                                           
            Commissioner, 103 T.C. 441 (1994).                                                             
            3  Sec. 4, entitled "POLICY", states:                                                          
                         .01  The Internal Revenue Service will not reopen any                             
                  case closed after examination by a district office or                                    
                  service center to make an adjustment unfavorable to the                                  
                  taxpayer unless:                                                                         
                                                                            (continued...)                 




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