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that, if he had known that the partnership was one other than
RRA, he would not have executed the closing agreement.
We are willing to assume, but do not decide, that Mr. Fisher
may have represented that the Provizers were partners in RRA.4
Nonetheless, even if Mr. Fisher represented that the Provizers
were partners in RRA, we are not satisfied that that
misrepresentation constituted a “misrepresentation of a material
fact.” Sec. 7121(b).
A “material fact” has been defined as “[a] fact that is
significant or essential to the issue or matter at hand.”
Black’s Law Dictionary, 611 (7th ed. 1999). For purposes of
section 7121, a misrepresentation is not synonymous with a
mistake: It “denotes something more deliberate or more conscious
than mere error or mistake.” Ingram v. Commissioner, 32 B.T.A.
1063, 1066 (1935). Under section 7121, misrepresentation of a
material fact must go to the “essence of the agreement.” Miller
v. IRS, 174 Bankr. 791, 796 (B.A.P. 9th Cir. 1994), affd. 81 F.3d
169 (9th Cir. 1996). Since petitioner attacks the closing
4 Mr. Kamerman testified that Mr. Fisher made this
representation to him. Mr. Fisher testified that he did not
remember making any such representation. Mr. Kamerman professed
to have no knowledge of the Plastics Recycling tax shelter
project. It may be questionable whether he even knew that there
was more than one partnership involved. Furthermore, Mr. Roberts
resigned as general partner of RRA in 1983, long before
petitioner executed the closing agreement, and it is difficult to
understand how the identity of the general partner would have
affected Mr. Kamerman's decision to execute the closing
agreement.
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