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January 12, 1999, statement of tax owing. The petition was filed
with this Court on April 13, 1999, and the U.S. postmark on the
petition's envelope was April 9, 1999.
Respondent filed a motion to dismiss for lack of
jurisdiction on the ground that the petition was not timely
filed. Petitioners filed an opposition to respondent's motion to
dismiss alleging that the notice of deficiency was withdrawn and
superseded by the statement of tax owing on which their petition
was based. Respondent then filed a response to petitioners'
opposition and denied that the revised examination report
(statement of tax owing) "constituted a second notice of
deficiency that superceded or withdrew the notice of deficiency,
dated June 15, 1998". Respondent's response, citing section
6212(d), stated that once a notice of deficiency has been issued,
it may be rescinded only with the taxpayer's consent. Respondent
further stated that the June 15, 1998, notice of deficiency had
never been rescinded. Petitioners then filed a reply to
respondent's response. Petitioners restated their position and
stated that their January 19, 1999, letter to respondent
communicated their consent to withdrawal of the notice of
deficiency. Respondent filed a supplement to respondent's
response, and petitioners filed a reply and opposition to the
supplement. A hearing was held in San Diego, California, on
respondent's motion.
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