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objection to petitioners' motion to vacate and her supporting
memorandum copies of a purported notice of deficiency for 1986
and a purported U.S. Postal Service Form 3877, reflecting postal
service receipt. Respondent now states that a deficiency notice
was mailed to petitioners' last known address for 1986 and that
petitioners failed to file a petition with this Court within the
time allowed by statute for such petition. However, petitioners
contend that they never received a deficiency notice for 1986 and
that the copies of documents attached to respondent's objection
and memorandum are false. At the hearing on the present motion
to vacate, respondent introduced no evidence concerning usual
procedures in respondent's office for the preparation and mailing
of deficiency notices or concerning the preparation and mailing
of the deficiency notice for 1986 in this case. Respondent has
failed to explain the reason for her representation in her motion
to dismiss to the effect that no deficiency notice had been
issued to petitioners with respect to 1986 as contrasted with
respondent's present assertion, disputed by petitioners, that
such a deficiency notice was sent to petitioners. Under such
circumstances, at the least, respondent should have provided a
witness or otherwise introduced a copy of the disputed notice of
deficiency into evidence at the hearing on the present motion.
Also, respondent should have provided evidence that she exercised
due diligence in efforts to locate a deficiency notice for 1986
before representing to this Court, in support of a motion to
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Last modified: May 25, 2011