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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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