Henry John Uscinski - Page 9

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          Commissioner, 61 T.C. 861, 864 (1974); Waxler v. Commissioner,              
          T.C. Memo. 1979-425.                                                        
               Consequently, although the current record might leave us in            
          doubt as to petitioner’s prospects for ultimately succeeding in             
          showing error in the notice of deficiency, we shall not deny                
          petitioner an opportunity to present relevant evidence.  As this            
          Court observed in Parker v. Commissioner, T.C. Memo. 1985-263:              
                    It is true that petitioner is not entitled to a                   
               trial on the possibility that an issue of material fact                
               might turn up at the trial.  First Nat. Bank v. Cities                 
               Service, 391 U.S. 253, 289-290 (1968).  But it is                      
               equally true that the fact it may be surmised that                     
               petitioner is unlikely to prevail at trial is not a                    
               sufficient basis for refusing him his day in court with                
               respect to an issue which is not shown to be sham,                     
               frivolous, or so unsubstantial that it would obviously                 
               be futile to try it. * * *                                             
               We reject, however, petitioner’s misguided view, reflected             
          in his objection to respondent’s motion for summary judgment,               
          that he is entitled to relief under section 1341.  In certain               
          circumstances, section 1341 may provide tax relief to a taxpayer            
          who repays money in one year that had been included in gross                
          income for a prior year under a claim of right.  The relief                 
          provided under section 1341, however, applies to the year in                
          which the repayment is made and does not affect the taxpayer’s              
          obligation to report as income, in the year of receipt, items               
          received under a claim of right.  See generally MidAmerican                 
          Energy Co. v. Commissioner, 114 T.C. 570, 581 (2000) (explaining            
          purposes and operation of section 1341), affd. 271 F.3d 740 (8th            





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