Ernest I. Korchak - Page 49

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          during the 90-day period in which he was allowed to petition the            
          imposition of the penalty to this Court.  Petitioner further                
          contends, however, that his case was assigned to the IRS Office             
          of Appeals for several months before the trial and that during              
          that time “All present issues were discussed at length and                  
          ultimately rejected by the Service”, so that “the failure of the            
          Commissioner to waive the overvaluation penalty while this case             
          was in Appeals, amounts to an abuse of discretion”.                         
               Petitioner has failed to persuade us that he requested a               
          waiver before trial as he alleges.  Petitioner did not request a            
          waiver in his petition, nor did he allege that he had requested             
          a waiver or that he had reasonable cause for the valuation of               
          the partnership’s assets claimed on his return.  Petitioner did             
          not introduce any evidence at trial to prove that he had                    
          requested a waiver or that he submitted any information to                  
          respondent in support of a waiver.  See, e.g., Mailman v.                   
          Commissioner, 91 T.C. 1079, 1084 (1988); Haught v. Commissioner,            
          supra; Magnus v. Commissioner, T.C. Memo. 1990-596.  Because                
          petitioner has failed to establish that he made a timely request            
          for waiver, we cannot conclude that respondent abused his                   
          discretion in failing to waive the section 6659 addition to tax.            
          Merino v. Commissioner, 196 F.3d at 159 (the Tax Court cannot               
          order the Commissioner to affirmatively do something that is                
          within the original discretion of the Commissioner where there              






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