- 15 -
prior to the filing of the petition, the taxpayer's counsel had
not turned his back on any opportunity that was afforded him to
present evidence to support the taxpayer's position. Counsel
made both written and oral requests to meet with the
Commissioner's agents, although these were to no avail. On these
facts, we held that the taxpayer had exhausted her available
administrative remedies.
The instant case is also distinguishable from Phillips v.
Commissioner, 88 T.C. 529 (1987), revd. 851 F.2d 1492 (D.C. Cir.
1988). In Phillips, the taxpayer failed to request consideration
of his case by Appeals, despite the Commissioner's issuance of a
preliminary notice informing him that he was entitled to
administrative review. Nevertheless, we concluded that the
taxpayer had exhausted his administrative remedies, because the
issue in question did not arise until after the Commissioner had
mailed the notice of deficiency.15 Thus, there was no possible
opportunity for an administrative Appeals conference regarding
that issue. Id. at 532. Subsequent to the docketing of the
14(...continued)
statutory notice and the failure to receive such notice
was not due to actions of the party * * *; and
(ii) The party does not refuse to participate in an
Appeals office conference while the case is in docketed
status.
15The issue concerned the validity of a joint filing status
election made on a return filed after the notice of deficiency
for the same year had been mailed. See Phillips v. Commissioner,
86 T.C. 433, 434-435 (1986), affd. 851 F.2d 1492 (D.C. Cir.
1988).
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