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pursuant to section 301.6231(a)(7)-1(l)(1)(iv), Proced. & Admin.
Regs.
While this Court and Court of Appeals for the Ninth Circuit
have interpreted the interaction of section 6231(c) and section
301.6231(c)-5T, Temporary Proced. & Admin. Regs., supra, in
Phillips v. Commissioner, 114 T.C. 115 (2000), affd. 272 F.3d
1172 (9th Cir. 2001), petitioner contends that his argument is
distinguishable, and, therefore, Phillips does not control. The
taxpayer in Phillips argued that section 301.6231(c)-5T,
Temporary Proced. & Admin. Regs., supra, was invalid and/or that
the Commissioner abused his discretion by not issuing the notice.
However, while acknowledging that the statute and regulation were
held valid in Phillips, petitioner argues that the regulation
contains language requiring the Commissioner to send notice at
the commencement of a criminal investigation. He asserts that
the Commissioner has no discretion in sending the notice, and
failure to do so is an error in performing a ministerial act. He
further attempts to distinguish his case from Phillips by
asserting that abuse of discretion concerning the regulation is
not an issue in the instant case.
In sum, petitioner asserts that the language of section
6231(c) and section 301.6231(c)-5T, Temporary Proced. & Admin.
Regs., supra, taken together, required respondent to notify Jay
Hoyt that his partnership items would be treated as
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