David Bruce Billings - Page 6

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               In 2002, the Billingses filed for bankruptcy and received a            
          discharge, which of course did not affect Rosalee’s obligation to           
          repay the money she’d embezzled or her own liability for the                
          unpaid 1999 taxes.  11 U.S.C. secs. 523(a)(1), 507(a)(8) (2000).            
          David retired from GM in 2003 and began collecting a pension,               
          though he continues to work two other jobs.  He and his wife have           
          filed timely tax returns for later years as they came due.                  
          As the IRS had not processed David’s original request for                   
          relief, he filed another one.  In November 2002, the IRS denied             
          his request for relief based on “all the facts and                          
          circumstances,” but particularly because:                                   
                    you failed to establish that it was                               
                    reasonable for you to believe the tax                             
                    liability was paid or was going to be paid                        
                    at the time you signed the amended return.                        
          David appealed, and the IRS issued its final determination, again           
          denying him relief because he did not believe when he signed the            
          amended return that the tax would be paid.                                  
               The Commissioner argues:                                               
                    Instead of filing an amended return, [Rosalee]                    
                    could have contacted respondent and informed                      
                    him of the unreported embezzlement income.                        
                    Once informed, respondent could have proceeded                    
                    with examination procedures and [Rosalee] could                   
                    have agreed to respondent’s determination of                      
                    additional tax.                                                   

          persuasive form.  We also note that the Billingses made these               
          decisions in late 2000, long before the Supreme Court held the              
          guidelines to be merely advisory.  See United States v. Booker,             
          543 U.S. 220 (2005).                                                        

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