- 11 - interest should be abated but have taken the position that no section of the Code gives respondent the authority to abate interest under the circumstances of this case. Respondent not only disputes that any representative has acknowledged interest should be abated, but respondent also contends that section 6404(a) is not applicable, apparently because petitioner did not specifically request relief under section 6404(a). In order to grant summary judgment under Rule 121, we must conclude that there is no dispute about a material fact and that the moving party is entitled to a decision as a matter of law. We are unable to do so. Not only is there a dispute about the material facts with respect to the application of section 6404(a), but our opinion in H & H Trim & Upholstery Co. v. Commissioner, supra, raises the issue of whether respondent improperly failed to consider section 6404(a) in determining that petitioner was not entitled to an abatement of interest.6 The opinion in H & H Trim & Upholstery Co. was filed on January 9, 2003. Respondent’s final determination was dated June 6Respondent’s only contention with respect to sec. 6404(a) is that he did not have to consider it because petitioner did not specifically request relief under sec. 6404(a). We do not believe that respondent’s excuse is adequate. Petitioner’s petition and its response to the motion allege facts that focus on the unfairness of respondent’s determination not to abate interest, even though they do not specifically mention sec. 6404(a). Moreover, petitioner alleged in his petition that he was entitled to relief under sec. 6404, and in his response to the motion, he specifically denied respondent’s allegation that sec. 6404(a) did not apply.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: May 25, 2011