Martin Ice Cream Company - Page 71

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            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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