John J. Burke and Vivian Burke - Page 15

                                                - 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).                                                                                       



Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011