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our opinion in Martin II “either held or strongly inferred facts
in conflict with the facts as found [in Martin I], or contrary to
the stipulation filed in [Martin II], and those errors were
material to [the Court’s] reasoning and conclusion.” The first
such error identified by petitioner is our statement that Mr.
Berg was petitioner’s counsel in a related deficiency case.
Petitioner contends that our statement equated with a finding
contrary to Martin I that Mr. Berg was authorized to file the
petition on petitioner’s behalf in the 1980 deficiency case. In
so arguing, petitioner misreads Martin II, which clearly provided
that “petitioner did not file, authorize the filing of, or ratify
the filing of the petition Mr. Berg signed and submitted.”
Furthermore, our holding with respect to the unauthorized
petition’s effect on the limitations period stated that “Although
petitioner did not authorize Mr. Berg to file the petition, the
petition nevertheless placed a ‘proceeding in respect of the
deficiency’ on our docket and suspended the limitations period.”
(Emphasis added.)
Petitioner asserts, as our second error, that a footnoted
portion of our discussion in Martin II conflicts with the
findings of fact in Martin I. In Martin II, we stated in
footnote 14 that Congress did not intend the expiration of the
limitations period during the period that a defective petition is
pending before the Court to disable the Commissioner’s power to
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Last modified: May 25, 2011