John S. Halpern - Page 13




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               before the United States Tax Court Harold M. Provizer and                 
               Joan Provizer v. Commissioner, Docket No. 27141-86                        
               (hereafter the CONTROLLING CASE).  [Fn. ref. omitted.]                    
          According to petitioner, since the TAX SHELTER related to RRA and              
          RRA’s items of income, deductions, and/or credits were not in                  
          issue in Provizer, he should not be bound by the agreement.  The               
          problem with this interpretation is that it essentially ignores                
          the operative parts of the agreement.                                          
               If there is a conflict between the premises stated and the                
          operative part of a closing agreement, the parties are bound by                
          the operative part.  As we stated in Zaentz v. Commissioner, 90                
          T.C. 753, 761-762 (1988):                                                      
               section 7121 does not bind the parties as to the premises                 
               underlying their agreement, they are bound only as to the                 
               matters agreed upon.  Sec. 7121(b).  In fact, by excluding                
               as grounds for rescission mistakes of fact or law, the                    
               statute contemplates that the parties may premise their                   
               agreement upon such a mistake. * * *                                      
          See also Estate of Magarian v. Commissioner, 97 T.C. 1, 5 (1991).              
               Furthermore, by executing the closing agreement petitioner                
          and respondent obviously intended that the parties would be bound              
          to something, i.e., as stated by the operative part of the                     
          agreement:  “All issues involving the above adjustment [relating               
          to RRA] shall be resolved as if the taxpayer [petitioner] was the              
          same as the petitioner in the CONTROLLING CASE.”  The controlling              
          case was Provizer.  Petitioner’s reading of the language in the                
          preamble, therefore, makes little sense.  On the other hand, if                
          the reference to RRA refers generically to the cases involving                 





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