Cinema '85, Richard M. Greenberg, Tax Matters Partner - Page 12

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          Without the requirement of a formal written agreement, respondent           
          anticipates confusion and judicial inefficiency: disputes will              
          arise over whether there was a settlement and will necessitate              
          judicial review as to whether there was a settlement and the                
          terms thereof.  Since respondent and Mr. Newman have not executed           
          either form, respondent contends that they have not entered into            
          a settlement agreement.                                                     
               While respondent's position may have the advantages that               
          respondent attributes to it, we believe that it is unnecessary to           
          decide that issue in the circumstances presented here.  Where               
          settlement is conditioned upon the execution of respondent's                
          forms, the execution of such forms controls resolution of whether           
          a settlement agreement was in fact made.  See, e.g., Estate of              
          Ray v. Commissioner, T.C. Memo. 1995-561, affd. 112 F.3d 194 (5th           
          Cir. 1997); see also Brookstone Corp. v. United States, 74 AFTR             
          2d 94-6025, 94-2 USTC par. 50,474 (S.D. Tex. 1994), affd. per               
          curiam without published opinion 58 F.3d 637 (5th Cir. 1995).  We           
          turn to the question whether the settlement here was so                     
          conditioned.                                                                


               7(...continued)                                                        
          what constitutes a "settlement agreement" for purposes of secs.             
          6224(c) and 6231(b)(1)(C).  A closing agreement (Form 906),                 
          statutorily authorized by secs. 7121 and 7122 has been used to              
          settle TEFRA cases.  See, e.g., Pack v. United States, 992 F.2d             
          955, 956 (9th Cir. 1993); Monge v. United States, 27 Fed. Cl.               
          720, 722 n.3 (1993).  In addition, we have held that a Form 870-P           
          qualifies as a settlement agreement under sec. 6224(c).  Korff v.           
          Commissioner, T.C. Memo. 1993-33.                                           




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