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witness fees on behalf of any other test case petitioner.64 Such
requests would have been required in order to obtain
reimbursement, inasmuch as Rule 148(b) in effect provides that
the Commissioner, unlike a private party, is not required to
tender fees and mileage in order to issue a valid subpoena.
On the basis of this record, we do not believe respondent’s
payment of Thompson’s witness fees and expenses was a benefit
that was unavailable to the other petitioners who testified at
the trial of the test cases. Accordingly, we conclude that such
payment was not part of the Thompson settlement. Having so
concluded, there is no need to reach petitioners’ argument that
the payment of Thompson’s fees was a benefit that should be given
effect by subtracting it from the numerator of the settlement
fraction rather than adding it to the denominator.
9. Release of Lien on the Thompsons’
Property and Other Intangible Benefits
On February 8, 1982, respondent had filed a notice of
Federal tax lien for the unpaid balance due of $23,385.78 for the
Thompsons’ taxable year 1978, which did not involve the
64Rule 148(a) states: “Any witness summoned to a hearing or
trial, or whose deposition is taken, shall receive the same fees
and mileage as witnesses in the United States District Courts.”
Rule 148(b) refers to sec. 7457(b)(1), which provides in turn:
“In the case of witnesses for the Secretary, such payments [of
fees, mileage and expenses] shall be made by the Secretary out of
any moneys appropriated for the collection of internal revenue
taxes”.
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