Richard Dundore and Virginia D'Anna-Dundore - Page 10




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          appeals conference, their claim is not supported by their actual            
          conduct as they made no attempt to schedule an earlier meeting.             
               Petitioners next contend that the Appeals officer took very            
          unreasonable legal positions when they met on January 24, 1994.             
          Petitioners claim they wished to settle the case at that meeting            
          but were unable to do so because the Appeals officer took                   
          unreasonable positions.  Petitioners did not have another meeting           
          with an IRS employee until their October 3, 1994, meeting, which            
          was suggested by respondent’s counsel.                                      
               A decision concerning the proper application of Federal tax            
          law is not a ministerial act.  See sec. 301.6404-2T(b)(1),                  
          Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,              
          1987).  Petitioners had not provided respondent with any                    
          documentary evidence relating to the adjustments to their 1989              
          and 1990 returns before the meeting on January 24, 1994.  At that           
          meeting the revenue agent explained to petitioners the nature of            
          respondent’s determinations and allowed petitioners to present              
          their case.  Based on petitioners’ presentation, the Appeals                
          officer was satisfied that respondent’s determinations were                 
          correct.  However, he agreed to take the case under further                 
          advisement to allow petitioners to produce additional evidence to           
          support their claims.  The Appeals officer’s analysis of                    
          petitioners’ case clearly required discretion and judgment in               
          applying Federal tax law to the facts and circumstances of                  





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