- 26 - 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,Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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