John S. Halpern - Page 10




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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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