Jerry and Patricia A. Dixon, et al - Page 255




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          In sum, whereas paragraph 4 of the 1985 piggyback agreements                
          states that a decision will be entered in the piggyback case                
          following entry of decision in the test cases, paragraph 3 of the           
          post-1985 piggyback agreements states that a decision will be               
          entered in the piggyback case once the decision in the test cases           
          becomes final.25  See Gridley v. Commissioner, T.C. Memo. 1997-             
          210.  Unlike 1985 piggyback agreements, post-1985 piggyback                 
          agreements state (at paragraph 7) that petitioners agree to be              
          bound to the Court's holding in the test cases respecting the               
          applicability of increased interest under section 6621(c) on any            
          underpayment of tax of more than $1,000.  Further, while 1985               
          piggyback agreements make no reference to additions to tax, post-           
          1985 piggyback agreements state (at paragraph 8) that petitioners           
          are not liable for additions to tax for negligence for any year             
          before the taxable year 1982.26                                             


          25  Despite this distinction, respondent did not move for                   
          entry of decision--upon entry of decisions in the Kersting test             
          cases in early 1992--in any of the cases in which Kersting                  
          petitioners had executed the 1985 version of the piggyback                  
          agreement.  Respondent has taken the position that no decisions             
          should be entered in any of the piggyback cases until the                   
          decisions in the test cases become final.  Cf. Abatti v.                    
          Commissioner, 859 F.2d 115 (9th Cir. 1988), affg. 86 T.C. 1319              
          (1986).                                                                     
          26  Although the record does not reveal why post-1985                       
          piggyback agreements limit respondent's concession of additions             
          to tax for negligence to taxable years before 1982, a plausible             
          explanation for selecting 1982 as the line of demarcation would             
          be that the Tax Court had released its opinion in Pike v.                   
          Commissioner, 78 T.C. 822 (1982), in May 1982, putting taxpayers            
          on notice for 1982 and later taxable years that Mr. Kersting's              
          programs did not generate legitimate interest deductions.                   

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