James D. Horn - Page 20

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          hearing, petitioner alleged:  “I was absent for three years due             
          to illness”.  In his petition to this Court for review of                   
          respondent’s determination that collection should proceed,                  
          petitioner alleged:  “Taxpayer was mentally ill from 1993 to 1996           
          and unable to make rational decisions.  The service [sic] is                
          aware of the illness.”                                                      
               In assessing petitioner’s mental competence at the various             
          relevant points in time, we look to State law for guidance, as              
          Federal courts generally do when, as here, there is no                      
          established body of Federal common law in point.  See, e.g.,                
          Harrell v. United States, 13 F.3d 232, 235 (7th Cir. 1993);                 
          Powers v. U.S. Postal Serv., 671 F.2d 1041, 1045 (7th Cir. 1982);           
          Furnish v. Commissioner, 262 F.2d 727, 733-734 (9th Cir. 1958),             
          affg. in part and remanding in part Funk v. Commissioner, 29 T.C.           
          279 (1957); see also Berger v. Commissioner, T.C. Memo. 1996-76.            
               Cognitive capacity is the standard generally used for                  
          determining ability to enter into an enforceable contract,6 both            

          defense that must be pleaded or it is waived, Robinson v.                   
          Commissioner, 117 T.C. 308, 312 (2001), and petitioner did not so           
               Even if we were to assume for purposes of argument that                
          estoppel does not apply, petitioner remains unable to prevail               
          because of our holding that he was competent to sign the Forms              
               6We apply contract principles in interpreting, applying, and           
          determining the enforceability of waiver documents.  Mecom v.               

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