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to Rescind Notice of Deficiency, which becomes
effective when executed on behalf of the Commissioner.
Although petitioners in the present case may have believed
that the notice of deficiency had been rescinded, the rescission
of a notice of deficiency is not a function of the taxpayer's
subjective belief. Rather, the rescission of a notice of
deficiency requires mutual consent by the Commissioner and the
taxpayer, and such mutual consent must be objectively apparent.
In the present case, there is no objective manifestation of
mutual consent by respondent and petitioners to rescind the
notice of deficiency. In fact, there is no evidence that
respondent ever contemplated the rescission of such notice.
Further consideration of a taxpayer's case after the mailing
of the notice of deficiency, coupled with respondent's concession
of a portion of the previously determined deficiency, does not
result in the rescission of the notice of deficiency.3 Hesse v.
Commissioner, T.C. Memo. 1997-333; Mullings v. Commissioner, T.C.
Memo. 1997-114; Slattery v. Commissioner, supra. Accordingly, we
hold that the notice of deficiency was not rescinded pursuant to
section 6212(d).
3 Although Rev. Proc. 88-17, sec. 3.04(2), 1988-1 C.B. 692,
693, states that the Commissioner may (with the taxpayer's
consent) agree to rescind a notice of deficiency "If the taxpayer
submits information establishing the actual tax due to be less
than the amount shown in the notice", the revenue procedure is
permissive rather than mandatory and does not alter our holding
in this case.
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Last modified: May 25, 2011