Robert S. Cohen and Margery Cohen - Page 46

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          that the litigation of the lead case and many others has been               
          decided unfavorably to their position, they should be considered            
          to have accepted the piggyback agreement that their TMP                     
          explicitly rejected.                                                        
               Additionally, petitioners argue that a portion of the                  
          stipulation of facts amounts to a concession by respondent’s                
          counsel that petitioners are entitled to the Miller settlement.             
          The stipulation paragraphs are as follows:                                  
               34.  On September 28, 1988 Robert L Steele, on behalf                  
                    of the Tax Matters Partner of SAB Foam Recycling                  
                    Associates, filed a protest against the adjustments               
                    to the 1982 and 1983 tax years proposed by the                    
                    Internal Revenue Service resulting from an examination            
                    of SAB Foam Recycling Associates.  In such protest the            
                    Tax Matters Partner of SAB Foam Recycling Associates              
                    agreed to follow the Tax Court’s decision in the                  
                    following lead cases: Miller v. Commissioner,                     
                    Docket No. 10382-89; Miller v. Commissioner, Docket No.           
                    10383-86; and Provizer v. Commissioner, Docket No.                
                    27141-86.  A copy of the protest of the Tax Matters               
                    Partner of SAB Foam Recycling Associates dated                    
                    September 28, 1988 is attached hereto and marked as               
                    Exhibit 10-J  [See supra p. 14.]                                  
               35.  On January 20, 1989 Stuart Becker, as the                         
                    Tax Matters Partner of SAB Foam Recycling Associates,             
                    sent a letter to the District Director of the Internal            
                    Revenue Service withdrawing the September 28, 1988                
                    agreement to be bound by the lead cases.  A copy of the           
                    January 20, 1989 letter is attached hereto as Exhibit             
                    11-J. [See supra pp. 14-15.]                                      
               The stipulation paragraphs quoted above merely summarize the           
          language of the protest letter and the withdrawal letter and                
          refer to attached exhibits for the specific language.  The                  
          language of the stipulation does not support the conclusion that            






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