Gwendolyn A. Ewing - Page 65

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              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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