Taylor Miller - Page 19




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               ii. Respondent Did Not Violate His Reopening Procedures in             
               Reopening Petitioner’s 1992 Tax Year.                                  
               Whether respondent was justified under Rev. Proc. 94-68 and            
          section 4023 of the Manual, supra, in reopening petitioner’s                
          “closed” case would depend upon whether respondent’s original               
          position (1) was attributable to taxpayer or Service misconduct,            
          (2) constituted “substantial error,” or (3) whether respondent’s            
          failure to change the position would have constituted “a serious            
          administrative omission”.  Satisfaction of any of these three               
          tests would justify reopening under the Service’s own policy                
          pronouncements.  See supra p. 16.                                           
               We focus on the third test, whether “failure to reopen                 
          would” have been “a serious administrative omission.”  Reopening            
          because of a “serious administrative omission” covers situations            
          in which a failure to reopen could:                                         
                    (1) result in serious criticism of the Service’s                  
               administration of the tax laws;                                        
                    (2) establish a precedent that would seriously                    
               hamper subsequent attempts by the Service to take                      
               corrective action;                                                     
                    (3) result in inconsistent treatment of similarly                 
               situated taxpayers who have relatively free access to                  
               knowledge as to how the Service treated items on other                 
               taxpayers’ returns.  [1 Audit, Internal Revenue Manual                 
               (CCH), sec. 4023.5, at 7065.]                                          
               With regard to “serious administrative omission”, we                   
          conclude that respondent is on firm ground.  Whatever doubt there           
          might have been about the clarity of respondent’s established               
          position in 1994, those doubts were laid to rest and the position           





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