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existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” Fed. R. Evid. 401. Therefore, we must
determine whether the evidence presented at trial that respondent
characterizes as “outside of the administrative record” has any
tendency to make the existence of any fact that is of consequence
in determining whether the Appeals officer abused his discretion
more probable or less probable than it would be without the
evidence. We find that the evidence does have a tendency to show
the Appeals officer abused his discretion in determining to
proceed with collection.
Petitioner’s testimony is relevant. Petitioner was not
present at the hearing. Petitioner’s testimony shows that he
signed the 1998 return on October 15, 1999. Petitioner’s
testimony shows that he had filed his returns for 1995, 1996,
1997, 1999, and 2000 on or about October 15 in the same pattern
and practice as he did for 1998. Petitioner’s testimony shows
that he acted in good faith in complying with the terms of the
offer-in-compromise.
Petitioner’s tax returns for 1995, 1996, 1997, 1999, and
2000 are relevant. They show a pattern and practice of
petitioner’s filing his returns on or about October 15. They
show petitioner generally received refunds for the period in
issue. While the Appeals officer reviewed petitioner’s
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