- 10 - In the present case, there is no objective manifestation of mutual consent by respondent and petitioners to rescind the notice of deficiency. Indeed, we find no evidence that respondent even contemplated the rescission of such notice. Further consideration of a taxpayer's case during the pendency of the 90-day period, without more, does not constitute a rescission.5 Slattery v. Commissioner, supra. Accordingly, although it is regrettable that petitioners came to believe that the warning set forth in the last paragraph of the first page of the notice of deficiency (see supra page 3) did not apply to them, we hold that the notice of deficiency was not rescinded pursuant to section 6212(d).6 5 We note that one of the reasons that the Commissioner may (with the taxpayer's consent) rescind a notice of deficiency is "If the taxpayer submits information establishing the actual tax due to be less than the amount shown in the notice." Rev. Proc. 88-17, sec. 3.04(2), 1988-1 C.B. 692, 693. What we think that the revenue procedure suggests is that the Commissioner intends to "consider first and then rescind if appropriate", rather than to "rescind first and then consider". Obviously, there will be cases, such as the present one, where the Commissioner considers the taxpayer's information but nevertheless concludes that such information does not warrant any revision to the determination made in the notice of deficiency. 6 It is also regrettable that respondent's letter dated Nov. 21, 1996, was issued after the expiration of the 90-day period provided by sec. 6213(a). Although we are sensitive to this unfortunate fact, we must note that neither estoppel nor other equitable considerations afford any basis for us to assume jurisdiction over a case in the absence of a timely-filed petition. Sec. 7442; Elgart v. Commissioner, T.C. Memo. 1996- 379; Slattery v. Commissioner, T.C. Memo. 1995-274; Lamont v. Commissioner, T.C. Memo. 1993-469, and cases cited therein. (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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