- 10 - agreement, he has the burden of establishing a misrepresentation of a material fact with “clear and convincing proof”. Hoge v. Commissioner, 33 B.T.A. 718, 725 (1935); see also Brinkman v. Commissioner, T.C. Memo. 1989-217. If the partnerships were substantially identical, we do not understand how the alleged misrepresentation could be considered a “material fact”. The question then is whether the RRA partnership in which petitioner invested was substantially different from Clearwater, the partnership involved in Provizer v. Commissioner, T.C. Memo. 1992-177. It would seem that the first logical step would be, as the Court suggested to counsel, to examine the record in Provizer. That record is a public document and has been available in the Tax Court throughout these proceedings. For reasons that are not entirely clear, petitioner eschewed that approach. This is rather peculiar because in Greene v. Commissioner, T.C. Memo. 1997-296,5 the Court found that “The transactions involving the * * * [recyclers] leased by * * * [RRA] are substantially identical to those in” Clearwater. It is true that that finding was based 5 There are two Greene cases–-Greene v. Commissioner, 88 T.C. 376 (1987), and Greene v. Commissioner, T.C. Memo. 1997-296. In the first case Elliot I. Miller was counsel of record, and in the second case Lanny M. Sagal was counsel. Mr. Kamerman has suggested that Mr. Miller may have had a conflict of interest. Mr. Miller was not counsel in the second Greene case that is discussed above.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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