Omar Urbina Pineda - Page 14

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          February 13, 2003 (the date of Form 12153), or July 24, 2003 (the           
          date of the Appeals officer’s letter informing petitioner that              
          the Appeals officer could not work on petitioner’s case for 90 to           
          120 days).  Indeed, petitioner candidly admitted at trial that he           
          did not have the financial resources to pay his outstanding                 
          liabilities at the time he filed his returns and at all relevant            
          times throughout this collection action.  It is well settled that           
          if, notwithstanding respondent’s error or dilatory act or                   
          omission, no earlier payment would have been made, then no                  
          abatement is called for.  Wright v. Commissioner, T.C. Memo.                
          2004-69, affd. 125 Fed. Appx. 547 (5th Cir. 2005); see Hawksley             
          v. Commissioner, T.C. Memo. 2000-354.  Accordingly, we conclude             
          that respondent did not abuse his discretion in failing to abate            
          interest.                                                                   
          B.  Additions to Tax                                                        
               The income tax assessments against petitioner include                  
          additions to tax under section 6651(a)(2) for the years in issue            
          and section 6654(a) for 2001.  At trial, petitioner contested his           
          liability for the additions to tax.  This issue was not raised in           
          the petition, see Rule 331(b)(4); however, respondent did not               
          object.  We therefore regard this issue as having been tried by             
          consent as if it had been raised in the petition.  See Rule                 
          41(b).                                                                      







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