Wayne A. McFadden - Page 10




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          to the loan to Stephanie and David.  Stephanie would be required            
          to pay a 5-percent excise tax and interest totaling $14,381.                
               Respondent informed petitioner that no closing agreement               
          would be executed if he accepted the terms of either offer.                 
          According to the examining agent, it was not the practice of                
          respondent to use closing agreements to resolve profit-sharing              
          plan disputes, except in cases of fraud and when a case is                  
          selected for review.  A closing agreement would not be used to              
          resolve the dispute with petitioner because it did not fall                 
          within either exception.  The dispute would be resolved when                
          petitioner performed according to the terms of the agreement.               
               Petitioner agreed to a deemed distribution pursuant to the             
          terms offered by respondent.  On January 1, 1995, as the profit-            
          sharing plan’s fiduciary, petitioner assigned Stephanie and                 
          David’s note, secured by the second deed of trust to the                    
          Atascadero property, to himself as beneficiary of the plan.                 
          Petitioner was 58 years old at the time of the distribution.                
               In the beginning of 1995, Stephanie accepted a job in                  
          Dallas, Texas.  Stephanie lived in a rented apartment in Texas              
          for more than half of 1995, continued to make the mortgage                  
          payments on her home in Oakland where her mother resided, and               
          made payments on the Great Western loan on the Atascadero                   
          property.  The monthly payments on the Great Western loan were              








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