Joseph D. and Wanda S. Lunsford - Page 20




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          issue.  E.g., Knapp v. Commissioner, 90 T.C. 430, 439 (1988),               
          affd. 867 F.2d 749 (2d Cir. 1989); Ewart v. Commissioner, 85 T.C.           
          544, 547-548 (1985), affd. 814 F.2d 321 (6th Cir. 1987); Estate             
          of Belcher v. Commissioner, 83 T.C. 227, 227 n.2 (1984) (Court              
          reviewed); Sharon v. Commissioner, 66 T.C. 515, 527 n.5 (1976),             
          affd. 591 F.2d 1273, 1275 (9th Cir. 1978); see also Bishop v.               
          Commissioner, T.C. Memo. 2001-82; McGee v. Commissioner, T.C.               
          Memo. 2000-308.                                                             
               The majority opinion contains no statement as to why the               
          majority do not respect the factual finding of the trial Judge              
          that the hearing requirement is at issue.  Nor am I aware of any            
          legitimate reason why, under the facts herein, the majority alone           
          may consider that issue abandoned.  The question of whether a               
          party has abandoned an issue involves a factual determination               
          that rests on the facts and circumstances of the case, and the              
          trial Judge is the one who is best able to make that                        
          determination.  See Bencker v. United States, 1992 U.S. Dist.               
          LEXIS 9869, 1992 WL 687180 (W.D. Mich. June 11, 1992) (court                
          applied a clearly erroneous standard in reviewing a bankruptcy              
          court’s finding that the IRS had waived an argument in the                  
          bankruptcy court).  I know of no principle of law that allows a             
          Judge who did not preside over a trial to conclude contrary to              
          the trial Judge that an issue has been abandoned.                           








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