Tom and Brenda Kelly - Page 4

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          agreement under the provisions of section 7121.3  Holland v.                
          Commissioner, 70 T.C. 1046, 1048-1049 (1978), affd. 622 F.2d 95             
          (4th Cir. 1980); Hudock v. Commissioner, 65 T.C. 351, 362 (1975).           
          The statutory procedure is ordinarily the exclusive method by               
          which the Commissioner may be finally and conclusively bound.               
          Botany Worsted Mills v. United States, 278 U.S. 282, 288 (1929);            
          Estate of Meyer v. Commissioner, 58 T.C. 69, 70-71 (1972).  "The            
          very fact that Congress has provided a way in which the Internal            
          Revenue Department may bind itself, precludes the possibility of            
          its being bound by some other procedure."  Knapp-Monarch Co. v.             
          Commissioner, 139 F.2d 863, 864 (8th Cir. 1944), affg. 1 T.C. 59            
          (1942).                                                                     
               In the instant case, petitioners did not enter into any                
          agreement with respondent with respect to their 1993 taxable                
          year, let alone a closing agreement pursuant to the provisions of           
          section 7121 and the regulations thereunder.  Further,                      
          respondent's acceptance and cashing of the check tendered by                
          petitioner did not constitute an accord and satisfaction of                 
          petitioners' tax liability for 1993.  Johnston v. Commissioner,             
          19 B.T.A. 630 (1930); Whitaker v. Commissioner, T.C. Memo. 1994-            
          109; Kehew v. Commissioner, T.C. Memo. 1983-354.                            



          3         Sec. 7121(b) provides an exception to this rule upon a            
          showing of fraud, or malfeasance or misrepresentation of a                  
          material fact.                                                              




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