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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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