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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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