- 8 -
907 F.2d 25 (2d Cir. 1990), affg. T.C. Memo. 1989-516; Mecom v.
Commissioner, 101 T.C. 374, 391 (1993), affd. without published
opinion 40 F.3d 385 (5th Cir. 1994); Estate of Camara v.
Commissioner, 91 T.C. 957, 961-962 (1988).
We do not find, as petitioner contends, that respondent's
actions manifested an intent to terminate the Form 872-A or that
respondent affirmatively misrepresented any fact concerning the
receipt and execution of the Form 872-A. Petitioner makes an
unfounded assumption and the facts point to the opposite
conclusion. Respondent's Manhattan District Office solicited the
Form 872-A while respondent's Newark District Office solicited
the subsequent Forms 872. The clear implication is that the
Newark District Office did not know that the Manhattan District
Office had obtained the executed Form 872-A. There has been no
evidence presented to indicate that the Form 872-A was in the
Newark District Office file and that respondent affirmatively
misrepresented this fact. The statement made by respondent's
representative that the Form 872-A was "probably lost in the
mail" does not indicate an affirmative misrepresentation of fact
but rather is an indication of that person's opinion or guess as
to the fate of the Form 872-A. Consequently, we find that
petitioner's misconception was not the product of any affirmative
misrepresentation of fact or wrongful misleading silence by
respondent.
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