- 16 -
case, the taxpayer's accountant had communicated regularly with
the Commissioner's Appeals Office, and his attorney had
communicated with the Commissioner's counsel on all matters.
In Phillips, we also found that the Commissioner's
insistence on pursuing the matter through litigation and her
refusal to consider the impact of two prior revenue rulings on
her litigating position demonstrated that any discussion of the
relevant issue that the taxpayer attempted was futile. In
support of our conclusion, we relied upon the report of the House
Ways and Means Committee, which recognized that under
circumstances indicating an unwillingness on the part of the
Commissioner to compromise, the standard of exhaustion of
administrative remedies should be applied less strictly. Id. at
533; see also H. Rept. 97-404, supra at 13.
In contrast, the dispositive issue in petitioner's case has
always been the same: whether petitioner signed the returns in
issue or tacitly consented to their filing. In addition, we do
not find evidence of intransigence by respondent as we did in
Phillips. In the instant case, petitioner failed to allege that
she had not filed joint returns until shortly before trial.
After concluding that petitioner had not signed the returns in
issue, respondent was confronted with the fact that petitioner
had filed joint returns with Mr. Burke for years prior and
subsequent to the years in issue and had alleged in her pleadings
that the returns for the years in issue were joint returns. Had
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