John Sann and Marianne Sann, et al. - Page 90

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               Petitioners contend that under the principle of "equality,"            
          the Commissioner has a duty of consistency toward similarly                 
          situated taxpayers and cannot tax one and not tax another without           
          some rational basis for the difference.  United States v. Kaiser,           
          363 U.S. 299, 308 (1960) (Frankfurter, J., concurring); see Baker           
          v. United States, 748 F.2d 1465 (11th Cir. 1984); Farmers' &                
          Merchants' Bank v. United States, 476 F.2d 406 (4th Cir. 1973).             
          According to petitioners, the principle of equality precludes the           
          Commissioner from making arbitrary distinctions between like                
          cases.  See Baker v. Commissioner, 787 F.2d 637, 643 (D.C. Cir.             
          1986), vacating 83 T.C. 822 (1984).                                         
               The different tax treatment accorded petitioners and Miller            
          was not arbitrary or irrational.  While petitioners and Miller              
          both invested in the Plastics Recycling transactions, their                 
          actions with respect to such investments provide a rational basis           
          for treating them differently.  Miller foreclosed any potential             
          liability for increased interest in his cases by making payments            
          prior to December 31, 1984; no interest accrued after that date.            
          In contrast, petitioners made no such payment and they conceded             
          that the increased rate of interest under section 6621(c) applies           
          in their cases.  Liability for the increased rate of interest is            
          the principal difference between the settlement in the Miller               
          cases, which petitioners declined when they failed to accept the            
          piggyback agreement offer, and the settlement offer that                    
          petitioners also failed to accept.                                          




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