James D. Barber and Betty L. Barber - Page 48




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          District Court held that on the record before it, the issue of              
          negligence could not be decided as a matter of law but rather was           
          an issue to be decided by the trier of fact.                                
               In the present cases, we have addressed the issue of                   
          negligence as an issue of fact, which we have decided based on              
          the totality of the facts and circumstances presented at trial.             
          Thus, Klein v. United States, supra, is distinguishable from the            
          present cases.                                                              
               E.  Conclusion                                                         
               Upon consideration of the entire record, we hold that                  
          petitioners are liable for the additions to tax for negligence              
          under section 6653(a)(1) and (2).  Respondent is therefore                  
          sustained on this issue.                                                    
          II.  The Plastics Recycling Project Settlement Offer                        
               Petitioners contend that they are entitled to the terms of             
          the Plastics Recycling Project Settlement Offer.  See Davenport             
          Recycling Associates v. Commissioner, T.C. Memo. 1998-347, affd.            
          220 F.3d 1255 (11th Cir. 2000).                                             
               It should be recalled that in October 1988, respondent made            
          the settlement offer, in writing, to Winer as the tax matters               
          partner of the Whitman partnership.  Respondent’s transmittal               
          letter stated that the settlement offer would not be repeated and           
          that the offer would expire 30 days from the date of the letter.            
          Winer did not accept the settlement offer on behalf of the                  






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