Gary T. Mackey - Page 1

                                 T.C. Memo. 2004-70                                   

                               UNITED STATES TAX COURT                                

                            GARY T. MACKEY, Petitioner v.                             
                    COMMISSIONER OF INTERNAL REVENUE, Respondent                      

               Docket No. 1802-02.             Filed March 18, 2004.                  

                    P did not file Federal income tax returns for the                 
               years 1995-99 but remitted amounts with his filing                     
               extension requests for 3 of those years.  R issued                     
               notices of deficiency, and P timely filed petitions for                
               redetermination.  R erroneously assessed the                           
               deficiencies and additions to tax determined in the                    
               notices.  R’s subsequent abatement of the assessments                  
               resulted in the issuance of an erroneous refund for                    
                    1.  Held:  R is not estopped from asserting the                   
               deficiencies and additions to tax remaining at issue.                  
                    2.  Held, further, P’s remittances do not affect                  
               the amounts of the deficiencies at issue.                              
                    3.  Held, further, R has failed to meet his burden                
               of production under sec. 7491(c), I.R.C., with respect                 

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