Robert M. and Paulette G. Maddox - Page 26

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            assess tax by signing Forms 872-A; (2) before asking the taxpayer                           
            to consent to extending the limitations period, the Commissioner                            
            had already decided to let the statute of limitations bar                                   
            assessment of tax against the taxpayer if the taxpayer did not                              
            consent; (3) the Commissioner had also decided not to contact the                           
            taxpayer or examine the taxpayer’s books and records; and (4) the                           
            Commissioner’s counsel had prior familiarity with the taxpayer’s                            
            tax returns for the years at issue which should have led him to                             
            doubt that Commissioner’s position would prevail.  Powers v.                                
            Commissioner, 100 T.C. at 473-474.                                                          
                  Powers is distinguishable from the instant case because here                          
            respondent did contact petitioners and attempt to obtain                                    
            information from them about the case.                                                       
                  The instant case comes close to being a borderline                                    
            situation.  Respondent could and should have served the IDR or                              
            otherwise started the process of requesting substantiation at the                           
            April 23, 1996, meeting between Ward and petitioners’                                       
            representative.  Instead, Ward withheld the already-prepared IDR                            
            and did not otherwise ask for any substantiation at this meeting.                           
            Although the matter is not free from doubt, we conclude that it                             
            is more likely than not that respondent’s fixation with obtaining                           
            the second extension, after having frittered away the bulk of the                           
            extension that petitioners already had granted, was the primary                             
            cause of the position respondent took in the answer.  At the time                           
            of the answer, respondent did not have the substantiation because                           
            respondent had decided not to ask for the substantiation.  Thus,                            




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