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13, 2003. Neither party brought the opinion in H & H Trim &
Upholstery Co. to our attention in either its motion papers or at
the hearing. Our research has not located any other case that
has interpreted section 6404(a) and applied it to abate interest
on an unpaid employment tax liability. Under the circumstances,
it is reasonable to conclude that neither party has considered
how the opinion in H & H Trim & Upholstery Co. might affect the
application of section 6404 to the facts of this case. The
parties should have the opportunity to develop the facts,
consider how the Memorandum Opinion in H & H Trim & Upholstery
Co. affects the legal analysis, and discuss whether this case may
be resolved without the necessity of a trial.
Although we shall deny respondent’s motion with respect to
section 6404(a) for the reasons stated above, we caution
petitioner that it has the burden of introducing credible
evidence to establish that the accrual and assessment of some
part of the interest at issue in this case was unfair and
therefore excessive.7
II. Conclusion
We shall grant respondent’s summary judgment motion with
respect to petitioner’s abatement claim under section 6404(e).
7In H & H Trim & Upholstery Co. v. Commissioner, T.C. Memo.
2003-9, the taxpayer proved that the interest that was abated
under sec. 6404(a) would not have accrued “but for” the
Commissioner’s mistake.
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