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them, we hold that the notice of deficiency was not rescinded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