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Respondent, unable to determine which parent was entitled to
the earned income credit, issued "whipsaw" notices of deficiency
for the 1995 and 1996 tax years to petitioner and Mr. Sherbo.1
The notices of deficiency disallowed the earned income credit to
both petitioner and Mr. Sherbo. Petitioner filed a timely
petition objecting to the notices of deficiency and seeking a
redetermination. Mr. Sherbo defaulted on the notices of
deficiency for 1995 and 1996. The Appeals officer assigned to
petitioner's case thereafter recommended that petitioner be
allowed the earned income credit for both 1995 and 1996 as
claimed on her tax returns on the basis that Mr. Sherbo could no
longer claim earned income credit for either of the years in
issue.
On April 12, 1999, pursuant to the stipulation of the
parties, the Court entered an agreed decision reflecting that no
deficiencies or overpayments are due. On May 6, 1999, petitioner
filed a Motion to Vacate Decision and lodged a Motion for Award
of Attorney's Fees. On May 10, 1999, the Court issued an Order
granting petitioner's Motion to Vacate Decision, ordering the
1 By issuing notices of deficiency to both petitioner and
Mr. Sherbo, respondent has ensured the comprehensive resolution
of petitioner and her former husband's inconsistent treatment of
the qualifying children and the resulting earned income credits.
See Wickert v. Commissioner, T.C. Memo. 1986-277, affd. 842 F.2d
1005 (8th Cir. 1988); Deutsch v. Commissioner, T.C. Memo. 1997-
470 n.4.
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