Norman E. Duquette, Inc. - Page 11




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          petitioner’s tax for the 1994 tax year.  Petitioner has failed to           
          show the invalidity of the notice.                                          
                    2.  Claim of Arbitrariness                                        
               Petitioner claims that the notice is arbitrary and                     
          erroneous, and amounts to nothing more than a naked assessment,             
          without foundation.  We assume that petitioner wishes to invoke             
          the rule of Helvering v. Taylor, 293 U.S. 507 (1935).  The                  
          rule of Helvering v. Taylor, may be simply put:  A court is given           
          sufficient cause to set aside respondent’s determination of a               
          deficiency if it is shown to the court that such determination              
          was arbitrarily made.  See id.  We need engage in no extended               
          discussion of that rule.  The record adequately demonstrates that           
          respondent’s determination of a deficiency was based on the                 
          similarity of the 1994 tax return to petitioner’s returns for the           
          preceding 2 years (for which respondent found cause for                     
          adjustments) and petitioner’s failure to comply with the document           
          request and consent to an extension of time to assess tax.                  
          Simply put, respondent did not act arbitrarily, but with cause.1            


               1  On brief, petitioner argues that respondent acted                   
          arbitrarily in not agreeing to a restricted Form 872, requiring             
          petitioner to consent to waive the time to assess tax only with             
          respect to tax attributable to items similar to those giving rise           
          to adjustments for the preceding 2 years.  Respondent’s                     
          explanation is that it is against policy to agree to restricted             
          consents until an examination is completed.  While we do not find           
          that policy arbitrary (quite to the contrary), we fail to see how           
          here, at least, respondent’s refusal to agree to a restricted               
          consent makes respondent’s determination of a deficiency                    
                                                             (continued...)           





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