Fletcher H. Hyler - Page 28




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          petitioner is liable for the addition to tax under section                  
          6651(a)(1).                                                                 
               Petitioner argues that earlier administrative actions of the           
          IRS require a different result.  Petitioner asserts that, because           
          of previous abatement of $867.92 in late filing penalties,                  
          section 6406 operates to estop respondent from assessing $16,494            
          in late filing penalties that were subsequently determined in the           
          notice of deficiency for 1995.  Petitioner is incorrect.  Section           
          6406 precludes review by "any other administrative or accounting            
          officer, employee or agent of the United States" (emphasis added)           
          of a decision of the Secretary or his delegate with respect to a            
          claim by the taxpayer.  Secs. 6406, 7701(a)(11)(B).  By its                 
          terms, section 6406 does not preclude the Secretary or his                  
          delegate from reviewing prior actions.  As explained in Hacker v.           
          Commissioner, T.C. Memo. 1993-285, affd. 29 F.3d 632 (9th Cir.              
          1994):                                                                      
               The legislative history of section 6406 indicates that                 
               such section was originally added for the purpose of                   
               prohibiting review of a decision of the Secretary of                   
               the Treasury (and his delegates, including the                         
               Commissioner) by employees of other agencies, such as                  
               the Comptroller General.  See Hearings on H.R. 8245                    
               Before the Senate Comm. on Finance, 67th Cong., 1st                    
               Sess. 299-300 (Sept. 1-Oct. 1, 1921); see also Crocker                 
               v. United States, 323 F. Supp. 718, 724-725 (N.D. Miss.                
               1971). Clearly, section 6406 does not estop the                        
               Commissioner, or his successor, from reviewing his own                 
               decisions.  See E.A. Landreth Co. v. Commissioner, 11                  
               B.T.A. 1, 23 (1928); see also Burnet v. Porter, 283                    
               U.S. 230 (1931); McIlhenny v. Commissioner, 39 F.2d 356                
               (3d Cir. 1930), affg. 13 B.T.A. 288 (1928); Estate of                  
               Meyer v. Commissioner, 58 T.C. 69, 71 (1972).                          





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