- 65 -
offered no contrary evidence on this factor. We
conclude that this factor favors petitioner.
Majority op. p. 27 (emphasis added).
The time for testing petitioner’s belief is when she signed
the 1995 return. See majority op. p. 26. At that time,
petitioner knew that Mr. Wiwi would not presently pay the unpaid
tax. He told her that he would pay the tax pursuant to a
“proposed” installment agreement that he was submitting with
their joint return. The Commissioner, however, is not obligated
to accept an installment agreement. See sec. 6159.
The majority finds nothing to establish petitioner’s
evaluations of the probabilities that: (1) The proposed
installment agreement would be accepted or (2) Mr. Wiwi could
immediately pay the unpaid tax if the proposed installment
agreement were rejected. Indeed, the majority’s failure to find
that an installment agreement was accepted leads us to believe
either that Mr. Wiwi did not actually submit the agreement or
that respondent rejected it.16 More importantly, while we
acknowledge that reasonable persons could draw different
inferences from that portion of the factual record, we do not
16 The administrative record shows no installment
agreement, either attached to the return or separate, either in
draft or in final form. Indeed, the only mention of an
installment agreement is the notation “no installment agreement”
in the notes of the Appeals officer from petitioner’s second
Appeals conference. Ex. 10-R at 105.
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