Thomas H. and Maureen Hesse - Page 9

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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               of deficiency was rescinded.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               authority deeming a notice of deficiency rescinded in                  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               involved herein was not rescinded pursuant to section                  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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