Homer N. Cummings - Page 4

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          On April 4, 1995, respondent issued a so-called affected                    
          items notice of deficiency to petitioner for each of the taxable            
          years 1984 and 1985.  The affected items notices of deficiency              
          set forth respondent's determination that petitioner is liable              
          for additions to tax under sections 6651(a)(1) and 6659 for 1984            
          and 1985.  Respondent determined that petitioner is liable for              
          those additions to tax as a consequence of the adjustments to               
          petitioner's tax liability arising from the disallowance of                 
          partnership items of December Associates for 1983, 1984, and                
          1985.                                                                       
               Petitioner invoked this Court's jurisdiction by filing a               
          timely petition for redetermination.  The petition includes an              
          allegation that petitioner is entitled to a refund under section            
          6512 in respect of any taxes assessed or paid after the                     
          expiration of the applicable period of limitations.  See Barton             
          v. Commissioner, 97 T.C. 548 (1991).  After respondent filed her            
          answer, petitioner filed his two motions for partial summary                
          judgment.                                                                   
          In his Motion for Partial Summary Judgment Regarding The                    
          Overvaluation Penalty, petitioner seeks a ruling that he is not             
          liable for the additions to tax under section 6659 as determined            
          by respondent.  Although respondent initially filed an objection            
          to petitioner's motion, respondent subsequently filed a                     
          Memorandum of Law, which states as follows:                                 






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