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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.
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