Eric E. and Dorothy M. Smith - Page 5




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               While we agree with respondent’s conclusion, we reject his             
          contention relating to section 7522.  The petition date is not              
          mentioned in section 7522, and, thus, this section is not                   
          determinative.                                                              
               The Court of Appeals for the Tenth Circuit, to which an                
          appeal would lie, has stated that a “‘notice of deficiency that             
          is actually received without delay prejudicial to the taxpayer’s            
          ability to petition the Tax Court is sufficient to toll the                 
          statute of limitations as of the date of mailing.’”  Scheidt v.             
          Commissioner, 967 F.2d 1448, 1450-1451 (10th Cir. 1992)(quoting             
          Borgman v. Commissioner, 888 F.2d 916, 918 (1st Cir. 1989), affg.           
          T.C. Memo 1984-503), affg. T.C. Memo. 1985-235; see secs.                   
          6501(a), 6503(a)(1).                                                        
               Respondent mailed, and petitioners received, the notice                
          prior to the expiration of the period of limitations.  Moreover,            
          petitioners filed a petition in a timely manner.  We hold that              
          where respondent failed to put the petition date on the notice,             
          and petitioners nevertheless received the notice and filed a                
          petition in a timely manner, such notice was valid.                         
               We note that while Congress, in section 3463(a) of the Act,            
          provided that the IRS “shall include” the petition date on each             
          notice, Congress failed to prescribe what consequences result               










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