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Program, this factor does not provide relief for petitioners.
See Mills, Mitchell & Turner v. Commissioner, T.C. Memo. 1993-99.
The CAP Program was a completely discretionary program. It is
well settled that a court may not order an agency to perform a
discretionary act. Capitol Fed. Sav. & Loan v. Commissioner, 96
T.C. 204, 212 (1991); Buzzetta Constr. Corp. v. Commissioner,
supra at 648; Oakton Distribs., Inc. v. Commissioner, 73 T.C.
182, 188 (1979).
Moreover, this Court may not substitute its judgment for
that of the Commissioner when reviewing discretionary acts.
Buzzetta Constr. Corp. v. Commissioner, supra. The
Commissioner’s exercise of discretionary power will not be
disturbed unless the Commissioner abuses such discretion by
making a determination that is unreasonable, arbitrary, or
capricious. Id. Whether the Commissioner has abused her
discretion is a question of fact, and the taxpayer’s burden of
proving an abuse of discretion is greater than that of the usual
preponderance of the evidence. Pulver Roofing Co. v.
Commissioner, 70 T.C. 1001, 1011 (1978).
We find that petitioners have failed to meet their burden of
proof in the instant case. We find further that the lump-sum
distributions received by petitioners in 1988 from their profit-
sharing plan are includable in gross income for taxable year 1988
under sections 402(b)(1) and 83, and this result cannot be
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