Jerry S. Payne - Page 7




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          herein as to the tax deficiencies and the fraud additions to tax            
          was substantially justified.                                                
               We are aware of the recent District Court opinions involving           
          petitioner and respondent.  See Payne v. United States, 91 F.               
          Supp. 2d 1014 (S.D. Tex. 1999), on appeal (5th Cir., argued                 
          Apr. 3, 2001), and Payne v. United States, 85 AFTR 2d 564, 2000-1           
          USTC par. 50,218 (S.D. Tex. 1999), on appeal (5th Cir., argued              
          Apr. 3, 2001), in which damages and litigation costs were awarded           
          to petitioner as a result of what was regarded by the District              
          Court as improper disclosure by respondent of tax return                    
          information relating to petitioner’s 1987 and 1988 tax                      
          liabilities, the same years involved herein.  Secs. 6103,                   
          7431(a)(1).  At the District Court level, petitioner was awarded            
          $1,536,680 in actual damages, $1,000 in punitive damages, and               
          $105,361 in litigation costs.  Payne v. United States, 91 F.                
          Supp. 2d at 1029; Payne v. United States, 85 AFTR 2d at 567,                
          2000-1 USTC par. 50,218 at 83,590.                                          
               We emphasize, however, that the above District Court                   
          opinions, now on appeal, involved the manner by which respondent            
          conducted the audit of petitioner’s 1987 and 1988 Federal income            
          tax returns.  In contrast, the instant litigation pertains to               
          respondent’s substantive tax deficiencies and additions to tax              
          arising out of that audit.                                                  








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