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An abuse of discretion is a decision that: (1) Rests on an
error of law or a clearly erroneous factual finding, or (2) a
decision not necessarily the product of legal error or a clearly
erroneous finding of fact but nevertheless is outside the range
of permissible decisions. Zervos v. Verizon N.Y., Inc., 252 F.3d
163, 169 (2d Cir. 2001).
Petitioner argued at trial that she was not given a hearing
at which she could be heard and have her accountant present. But
petitioner was offered two alternative dates for a hearing and a
2-day extension after she failed to appear at the hearing on the
second alternative date. Petitioner failed to request or make an
appointment between the 2-day extension and the issuance of the
notice of determination.
Once a taxpayer has been given an opportunity for a hearing
but fails to avail herself of that opportunity, the Appeals
officer may proceed in making a determination by reviewing the
case file. See Mann v. Commissioner, T.C. Memo. 2002-48; sec.
301.6330-1(d)(2), Q&A-D7, Proced. & Admin. Regs. When petitioner
did not appear for the hearing, Ms. Dellosso reviewed
petitioner’s case file and considered the sole issue raised by
petitioner in her request for a hearing, that she had “paid the
tax”. After the review, respondent issued the notice of
determination.
Petitioner alleges that she offered to pay the tax in full,
certainly a viable collection alternative, and the settlement
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