Gregory Powell & Araminta D. Morton - Page 7

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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          that the notice of deficiency had been rescinded, the rescission            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          hold that the notice of deficiency was not rescinded pursuant to            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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