- 21 -
Montgomery testified that he believed that Mr. Keil during the
telephone conversation of December 15, 2003, authorized him to
settle this case on behalf of both petitioners, we find this
testimony incredible when viewed against the record as a whole.
Before that conversation, Montgomery had been dealing exclusively
with Ms. Keil as to petitioners’ 1993 and 1994 income taxes, and
Montgomery had never spoken directly to Mr. Keil as to that
matter.6 Given our additional finding that the December 15,
2003, telephone conversation between Montgomery and Mr. Keil
lasted 25 minutes at the most, we decline to find on the basis of
Montgomery’s uncorroborated and incredible testimony that Mr.
Keil authorized Montgomery during their brief conversation to
accept any settlement on behalf of both petitioners.7 See Ruark
v. Commissioner, 449 F.2d 311, 312 (9th Cir. 1971), affg. per
curiam T.C. Memo. 1969-48; Clark v. Commissioner, 266 F.2d 698,
708-709 (9th Cir. 1959), affg. in part and remanding on another
ground T.C. Memo. 1957-129.
6 While Montgomery testified in one breath that he met with
both petitioners at the start of the audit and discussed the
audit with them at that time, he testified adamantly in a second
breath that he never had a face-to-face meeting with petitioners.
7 Even if Montgomery had received Mr. Keil’s consent on
Dec. 15, 2003, as he claimed, that day was at least 1 day after
Montgomery agreed to the second settlement and 6 days after he
agreed to the first settlement. Of course, the mere fact that
the parties filed the settlement stipulation with the Court on
Jan. 14, 2004, does not mean that a settlement occurred only on
that date. See Dorchester Indus., Inc. v. Commissioner, 108 T.C.
320 (1997), affd. 208 F.3d 205 (3d Cir. 2000).
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NextLast modified: May 25, 2011