Michael A. Zapara and Gina A. Zapara - Page 14

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          agree with respondent that the Appeals officer found “that there            
          was no written request submitted by the taxpayers for the sale of           
          the stock”, we would conclude that such a finding was an abuse of           
          discretion, as being without sound basis in fact.                           
               Respondent leans heavily on a statement in the Appeals                 
          officer’s Appeals Case Memo:  “No request was received in writing           
          from the representative as requested”.  The administrative record           
          shows, however, that what the Appeals officer ultimately                    
          requested from Mr. Mather, and conditioned the sale of the stock            
          upon, was information in writing as to the fair market value of             
          the stock.11  This conclusion is consistent with the context of             

               10(...continued)                                                       
          has requested to happen”.  A day later, she spoke by phone to Mr.           
          Mather, who, according to her notes, “wants to sell stock”.  The            
          Appeals officer’s case activity notes indicate that she would               
          continue to work with Mr. Mather, “on possible sale of stock he             
          has requested to happen”.  In her Appeals Case Memo, the Appeals            
          officer states:  “The request to sell the stock was made during             
          the consideration of this case.”                                            
               11 According to a Sept. 7, 2001, entry in her case activity            
          records, the Appeals officer, in her first telephone conversation           
          with Mr. Mather after receiving the Aug. 23, 2001, fax, told him            
          that she “would like” him to put his request “in writing”, with a           
          copy to the revenue officer.  According to the Appeals officer’s            
          own characterization of it, then, this directive was precatory;             
          there is no indication that the Appeals officer made her                    
          consideration of Mr. Mather’s faxed request (which was                      
          necessarily in writing) conditional on his submitting an                    
          additional written request.  To the contrary, the case activity             
          records show that immediately after speaking with Mr. Mather, the           
          Appeals officer spoke with the revenue officer, who was not only            
          already familiar with Mr. Mather’s request but acquiesced in it,            
          subject to ascertaining the stock’s fair market value.  Other IRS           
          personnel to whom she spoke reiterated concerns about determining           
          the stock’s fair market value.                                              
                                                             (continued...)           




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