Stanley and Jean Cohen - Page 14

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          administrative stage of the proceedings so as to afford her the             
          opportunity to exercise her discretion.  McCoy Enterprises v.               
          Commissioner, 58 F.3d 557, 563 (10th Cir. 1995), affg. T.C. Memo.           
          1992-693; Estate of Reinke v. Commissioner, 46 F.3d 760, 765 (8th           
          Cir. 1995), affg. T.C. Memo. 1993-197; Sisson v. Commissioner,              
          T.C. Memo. 1994-545; Myers v. Commissioner, T.C. Memo. 1994-529;            
          Klieger v. Commissioner, T.C. Memo. 1992-734.                               
               Petitioners concede that they did not seek a waiver prior              
          to trial, but contend that there is case authority for the                  
          proposition that respondent should have granted a waiver sua                
          sponte.  On brief they cite Fisher v. Commissioner, 45 F.3d 396             
          (10th Cir. 1995), revg. and remanding T.C. Memo. 1992-740;                  
          Vorsheck v. Commissioner, 933 F.2d 757 (9th Cir. 1991), affg. in            
          part and revg. in part an Oral Opinion of this Court; and Daoust            
          v. Commissioner, T.C. Memo. 1994-203.  Petitioners' reliance on             
          these cases is misplaced.  In the Fisher case, the Court of                 
          Appeals found that the Commissioner abused her discretion by                
          failing to respond to the taxpayer's request for a waiver, not by           
          refusing to grant a waiver sua sponte.  In neither of the other             
          decisions cited by petitioners is there any indication of whether           
          an administrative remedy was in fact sought or any discussion of            
          the need to follow such a procedure as a matter of law.                     
          Petitioners have not proven their entitlement to a waiver.  The             
          addition to tax is accordingly sustained.                                   





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