Thomas H. and Maureen Hesse - Page 10

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               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          them, we hold that the notice of deficiency was not rescinded               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...)        




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