John J. Burke and Vivian Burke - Page 14

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            Petitioner signed two powers of attorney granting Mr. Silver's                               
            accounting firm the authority to represent her for purposes of                               
            respondent's audit.  Moreover, through her original attorney,                                
            petitioner maintained in the petition, and until shortly before                              
            trial in this case, that the returns were jointly filed.13  See                              
            supra pp. 6-7.                                                                               
                  Petitioner's reliance on our opinion in Lomanno v.                                     
            Commissioner, T.C. Memo. 1994-426, granting the taxpayer's motion                            
            for an award of attorney's fees and litigation costs, is                                     
            misplaced.  In Lomanno, we determined that the taxpayer had                                  
            exhausted her administrative remedies, despite the fact that no                              
            Appeals conference was held.  However, in contrast to the instant                            
            case, the taxpayer in Lomanno never received a 30-day letter.  As                            
            a result, we concluded that section 301.7430-1(e), Proced. &                                 
            Admin. Regs., "would allow * * * [her] to be excepted from having                            
            to participate in a prepetition appeals office conference."                                  
            Lomanno v. Commissioner, supra.14  In addition, we found that                                

                  13Respondent is not required to question and investigate the                           
            authenticity of every return signature.  Sec. 6064 provides that                             
            "The fact that an individual's name is signed to a return,                                   
            statement, or other document shall be prima facie evidence for                               
            all purposes that the return, statement, or other document was                               
            actually signed by him."                                                                     
                  14Pursuant to sec. 301.7430-1(e)(2), Proced. & Admin. Regs.,                           
            in the case of a petition in the Tax Court, a party's                                        
            administrative remedies shall be deemed to be exhausted if:                                  

                  (i) The party did not receive a notice of proposed                                     
                  deficiency (30-day letter) prior to the issuance of the                                
                                                                           (continued...)                



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