James M. Robinette - Page 33

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          IV. Whether Respondent Abused His Discretion                                
               Where, as here, the validity of the underlying tax liability           
          is not at issue, we review the determination for abuse of                   
          discretion.  Sego v. Commissioner, 114 T.C. at 610; Goza v.                 
          Commissioner, 114 T.C. at 181-182.  In doing so, we review                  
          whether the Appeals officer’s determination was arbitrary,                  
          capricious, or without sound basis in fact or law.  Woodral v.              
          Commissioner, 112 T.C. at 23.  Having observed the appearance and           
          demeanor of the witnesses testifying for petitioner at trial,               
          including petitioner, we find them to be honest, forthright, and            
          credible.                                                                   
               Taking into account all the facts and circumstances, we                
          conclude that on the basis of the record before us, respondent              
          abused his discretion in determining to proceed with collection.            
               A.   Whether Petitioner’s Return Was Timely Filed                      
               We note at the outset that contrary to petitioner’s                    
          contentions, we find that petitioner’s return was not timely                
          filed.  Filing, generally, “is not complete until the document is           
          delivered and received”.  United States v. Lombardo, 241 U.S. 73,           
          76 (1916).  Section 7502 provides an exception to this rule.                
          Section 7502(a)(1) provides that, in certain circumstances, a               
          timely mailed document will be treated as though it were timely             
          filed.  Section 7502(a)(2) provides that the timely                         
          mailing/timely filing rule applies if the postmark date on an               






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