Daniel O. Abelein - Page 13

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          as the result of delays by and other actions of the tax matters             
          partner.                                                                    
               Petitioner is also correct in asserting that not all the               
          facts in his case are present in the example.  However, it is               
          unreasonable to expect that facts in an example be identical to             
          facts of a particular case before the example can be relied upon.           
          The IRM example was only one of many factors respondent                     
          considered.  Given the similarities to petitioner’s case,                   
          respondent’s reliance on that example was not arbitrary or                  
          capricious.                                                                 
               3.   Petitioner’s Other “Equitable Facts”                              
               Petitioner argues that respondent abused his discretion by             
          failing to consider the other “equitable facts” of this case.               
          Petitioner’s “equitable facts” include reference to:  (1)                   
          Petitioner’s reliance on Bales v. Commissioner, T.C. Memo. 1989-            
          568;11 (2) petitioner’s reliance on Hoyt’s enrolled agent status;           


               11  Bales v. Commissioner, T.C. Memo. 1989-568, involved               
          deficiencies determined against various investors in several Hoyt           
          partnerships.  This Court found in favor of the investors on                
          several issues, stating that “the transaction in issue should be            
          respected for Federal income tax purposes.”  Taxpayers in many              
          Hoyt-related cases have used Bales as the basis for a reasonable            
          cause defense to accuracy-related penalties.  This argument has             
          been uniformly rejected by this Court and by the Courts of                  
          Appeals for the Sixth, Ninth, and Tenth Circuits.  See, e.g.,               
          Hansen v. Commissioner, 471 F.3d 1021 (9th Cir. 2006), affg. T.C.           
          Memo. 2004-269; Mortensen v. Commissioner, 440 F.3d 375, 390-391            
          (6th Cir. 2006), affg. T.C. Memo. 2004-279; Van Scoten v.                   
          Commissioner, 439 F.3d 1243, 1254-1256 (10th Cir. 2006), affg.              
          T.C. Memo. 2004-275.                                                        





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