- 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