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provision like the second sentence of section 7522(a), doesn’t
require us to invalidate the notice. To invalidate the notice
would impose a disproportionately severe sanction against the
fisc. Any impression created by the Commissioner’s occasional
mistake, evidenced by this case, and by Smith v. Commissioner,
114 T.C. 489 (2000) (upholding validity of similar notice where
taxpayer filed petition within 90-day period specified by section
6213(a)), that the Commissioner is flouting the expressed will of
Congress, is belied by the revised format of the notice form and
the directions and instructions in the Internal Revenue Manual.1
Having expressed agreement with the majority’s upholding of
the notice, what should we do with the petition, in the absence
of any argument of detrimental reliance or any evidence of
petitioner’s confusion? The Court’s response to a somewhat
analogous situation in Shea v. Commissioner, 112 T.C. 183, 207
(1999), at least raises the question whether some sanction
against respondent or relief to petitioner would be appropriate.
I join the majority in answering the question in the
negative in this case. Because petitioner has failed to dispel
1 See, e.g., 2 Audit, Internal Revenue Manual (CCH), sec.
4.3.19.1.8.2, at 7712 (statutory notice letter must include the
last day taxpayer can file petition with Tax Court); 2 Audit,
Internal Revenue Manual (CCH), Exhibit 4.3.19.1-2, at 7748 (form
of deficiency notice cover letter, as revised in 1999, includes
heading “Last Day to File a Petition With the United States Tax
Court:”); 2 Audit, Internal Revenue Manual (CCH), sec.
4.3.19.1.6.3, at 7709 (issuer of deficiency notice must enter
“Last Day to File” date in the form letter).
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