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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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