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the instant case should be on whether respondent failed to
undertake the balancing required under section 6330(c)(3)(C).
On the basis of the trial Judge’s findings set out in the
majority opinion in the instant case it is clear to me that
respondent failed to balance the relatively slight harm to
respondent of receiving an hours-late2 return against the great
harm to petitioner of reinstating and collecting a large tax
liability. The abuse of discretion in failing to undertake the
required balancing becomes apparent when taking into account that
petitioner had timely filed his other returns as agreed in the
offer-in-compromise agreement, had made a good faith effort to
timely file the 1998 return, and had paid all the tax due in that
return and was due a refund. See majority op. pp. 4-7. Despite
petitioner’s technical3 failure to timely file the 1998 return,
respondent should have allowed petitioner to present evidence
that favored petitioner’s position and should have taken those
facts into account in balancing the competing interests between
the Government and petitioner. Respondent should have considered
2By “hours-late” I mean hours after the “last collection”
requirement of sec. 301.7502-1(c)(1)(iii)(B), Proced. & Admin.
Regs.
3I do not mean to imply that taxpayers are not required to
comply with the technical requirements of the Internal Revenue
Code and the regulations thereunder. However, respondent should
have allowed petitioner to present evidence favoring petitioner’s
position despite petitioner’s failure to comply with the last
collection requirement of sec. 301.7502-1(c)(1)(iii)(B), Proced.
& Admin. Regs.
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