John M. Mekulsia - Page 28

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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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