- 71 -
when the petitioner never requested respondent to exercise it.” See
also McCoy Enters., Inc. & Subs. v. Commissioner, 58 F.3d 557, 563
(10th Cir. 1995), affg. T.C. Memo. 1992-693; Estate of Reinke v.
Commissioner, 46 F.3d 760, 765-766 (8th Cir. 1995), affg. T.C. Memo.
1993-197; Mailman v. Commissioner, supra at 1082-1084; Dugow v.
Commissioner, T.C. Memo. 1993-401, affd. without published opinion 64
F.3d 666 (9th Cir. 1995); Klieger v. Commissioner, T.C. Memo.
1992-734; sec. 1.6661-6, Income Tax Regs.; cf. Gallade v.
Commissioner, supra at 369 (citing Estate of Reinke v. Commissioner,
supra at 765, for the proposition that, while the existence of “a
taxpayer’s request for a waiver can establish the Commissioner’s
degree of fault for failing to waive, it [Estate of Reinke] does not
hold that a request is a requirement or prerequisite for a waiver.”).35
Even if petitioner had requested a waiver, we would hold that
petitioner has not established that respondent would have committed an
abuse of discretion in refusing the request. In this case, petitioner
would have been required to show that reliance on the professional
advice of Mr. Hewit was reasonable and that petitioner acted in good
faith under the circumstances. Sec. 1.6661-6(b), Income Tax Regs.
While we have held that petitioner has established, by the
preponderance of the evidence, that it was not negligent for purposes
35 Under sec. 6664(c) of the current law, the Omnibus Budget
Reconciliation Act of 1989, Pub. L. 101-239, sec. 7721(a), 103
Stat. 2398, effective for returns with a due date after Dec. 31,
1989, the Commissioner no longer has this discretion, and no
penalty may be imposed for understatements if the taxpayer can
show that it had reasonable cause for the understatement and that
it acted in good faith.
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