Mark Friedman - Page 78

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               Petitioners contend that under the principle of "equality,"            
          the Commissioner has a duty of consistency toward similarly                 
          situated taxpayers and cannot tax one and not tax another without           
          some rational basis for the difference.  United States v. Kaiser,           
          363 U.S. 299, 308 (1960) (Frankfurter, J., concurring); see Baker           
          v. United States, 748 F.2d 1465 (11th Cir. 1984); Farmers' &                
          Merchants' Bank v. United States, 476 F.2d 406 (4th Cir. 1973).             
          According to petitioners, the principle of equality                         
          precludes the Commissioner from making arbitrary distinctions               
          between like cases.  See Baker v. Commissioner, 787 F.2d 637, 643           
          (D.C. Cir. 1986), vacating 83 T.C. 822 (1984).                              
               The different tax treatment accorded petitioners and Miller            
          was not arbitrary or irrational.  While petitioners and Miller              
          both invested in the Plastics Recycling project, their actions              
          with respect to such investments provide a rational basis for               
          treating them differently.  Miller foreclosed any potential                 
          liability for increased interest in his cases by making payments            
          prior to December 31, 1984.  No interest accrued after that date.           
          In contrast, petitioners made no such payment, and they conceded            
          that the increased rate of interest under section 6621(c) applies           
          in their cases.  Liability for the increased rate of interest is            
          the principal difference between the settlement in the Miller               
          cases, which petitioners declined when they-failed to accept the            







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