- 14 -
the plastic recyclers, the parts of the agreement are in harmony.
This seems to us to be the more logical reading of the language
in the preamble, and, notwithstanding Mr. Kamerman’s testimony,
it probably was what was intended by the parties. Cf. Overhauser
v. United States, 45 F.3d 1085, 1089 (7th Cir. 1995).
In sum, we do not find that there was a misrepresentation of
a material fact, and, under section 7121(b)(2), we may not set
aside or disregard the closing agreement. Furthermore, we find
that petitioner is bound by Provizer v. Commissioner, supra,
under the closing agreement.7
Respondent also filed a motion for an award of a penalty
under section 6673. That section provides, in relevant part,
7 At trial, petitioner raised the argument that the closing
agreement should be set aside because petitioner allegedly did
not receive a prior offer that was more favorable to him than
that which resulted from our Provizer v. Commissioner, T.C. Memo.
1992-177. The theory apparently was that this amounted to
malfeasance under sec. 7121(b), or at least it was on that theory
that the Court allowed examination of the witnesses on that
issue. Petitioner has not argued this point on brief, and it is
deemed conceded. See Burbage v. Commissioner, 82 T.C. 546, 547
(1984), affd. 774 F.2d 644 (4th Cir. 1985); Wolf v. Commissioner,
T.C. Memo. 1992-432, affd. 13 F.3d 189 (6th Cir. 1993). Aside
from the so-called TEFRA partnership provisions (see secs. 6621
through 6234 and on point sec. 6224(c)(2)) that do not apply
here, there is nothing in the Internal Revenue Code that requires
that an offer to one taxpayer be extended to other taxpayers.
Moreover, it should be noted that there was a patent
inconsistency in petitioner’s argument that Mr. Fisher’s alleged
misrepresentation was to a material fact and petitioner’s
insistence that he was entitled to an alleged settlement based
upon other Plastics Recycling cases. The latter argument must
assume that he was entitled to the offer because the cases were
substantially identical.
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