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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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