James M. Robinette - Page 47

                                       - 47 -                                         
          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.                                                              




Page:  Previous  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  Next

Last modified: May 25, 2011