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The rescission issue is indistinguishable from that in
Slattery v. Commissioner, T.C. Memo. 1995-274. What we said in
that case regarding rescission applies equally in the present
case. Thus:
We now turn to the question of whether the notice
of deficiency was rescinded. Section 6212(d) provides
that the Secretary may, with the consent of the
taxpayer, rescind any notice of deficiency mailed to
the taxpayer. Clearly, the statute requires mutual
consent by the Secretary and the taxpayer to effect a
rescission of a notice of deficiency.4 We know of no
authority deeming a notice of deficiency rescinded in
absence of a formal rescission. While the facts
presented herein may suggest that respondent considered
a rescission, she did not consent to a rescission.
Returning a case file from the 90-day section of
respondent's office to the examination division for
purposes of a conference is not tantamount to a
rescission, even though the conference, due to
miscommunication, was eventually scheduled for a date
subsequent to the running of the 90-day period.
Accordingly, we conclude that the notice of deficiency
involved herein was not rescinded pursuant to section
6212(d).
_________________
4 The Internal Revenue Service has provided guidance to
taxpayers wishing to consent to the rescission of a notice of
deficiency. See Rev. Proc. 88-17, 1988-1 C.B. 692. This revenue
procedure requires the taxpayer to request Form 8626, Agreement to
Rescind Notice of Deficiency, which becomes effective when
executed on behalf of the Commissioner.
We recognize that petitioners in the present case believed
that the notice of deficiency had been rescinded. However, under
the operative statute, the rescission of a notice of deficiency
is not a function of the taxpayer's subjective belief. Rather,
the rescission of a notice of deficiency requires mutual consent
by the Commissioner and the taxpayer, and such mutual consent
must be objectively apparent.
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