Barry I. Fredericks - Page 8

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          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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