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still had possession of the pleadings from the section 7408
injunction case against Winer and Winer Development Corp. This
refund suit ultimately was dismissed without prejudice because
venue was improper.
On June 21, 1988, Winer refiled his refund suit regarding
the section 6700 penalty in the District Court for the Middle
District of Florida. Winer's complaint contained no information
or any references to the section 7408 injunction proceeding which
had been filed against him by the United States.
In a case similar to Winer's, Waltman v. United States, 618
F. Supp. 718 (M.D. Fla. 1985), the District Court held that the
amount of the penalty asserted under section 6700 was limited to
the greater of $1,000 or 10 percent of the gross income derived
from each sale. Id. at 720. Under the holding in Waltman,
respondent's calculation of the section 6700 penalty in Winer's
case was excessive and ultimately was reduced.
A notice of deficiency was issued to Winer and his wife,
Judith J. Winer, on March 19, 1992. The notice of deficiency was
for Winer's personal income taxes for the taxable years 1979 and
1981 through 1984, inclusive. In the notice of deficiency,
respondent determined adjustments primarily related to Winer's
investment as a Schedule C owner in certain Sentinel EPE and EPS
recyclers. However, the notice of deficiency also made
adjustments for "burnout gain" for Winer's mining partnerships,
partnership losses claimed in excess of basis, and adjustments
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