Law Offices of Michael B. L. Hepps - Page 11

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          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.                                                 





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