Richard Allan and Corinne Lucille Balser - Page 10




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          chosen by the Commissioner is appropriate.  See, e.g., Swanson v.           
          Commissioner, 121 T.C. 111, 119 (2003) (challenge to                        
          appropriateness of collection reviewed for abuse of discretion).            
               In order for a taxpayer to prevail under the abuse of                  
          discretion standard, it is not enough for the Court to conclude             
          that the Court would not have authorized collection; the Court              
          must conclude that, in authorizing collection, the Appeals                  
          officer has exercised discretion arbitrarily, capriciously, or              
          without sound basis in fact.  Estate of Jung v. Commissioner, 101           
          T.C. 412, 449 (1993); accord Mailman v. Commissioner, 91 T.C.               
          1079, 1084 (1988).  An abuse of discretion occurs when a decision           
          is based upon an erroneous legal standard or on a clearly                   
          erroneous finding of fact.  Smith v. Marsh, 194 F.3d 1045, 1049             
          (9th Cir. 1999).                                                            
               In response to their request for an Appeals hearing,                   
          petitioners were afforded a conference with AO Cleveland via                
          several telephone calls.  Petitioners contended during the                  
          conference that the collection was inappropriate because all                
          outstanding taxes were paid in accordance with the confirmed plan           
          in the consolidated bankruptcy case.                                        
               In support of their argument, petitioners presented as                 
          evidence a statement of account dated September 21, 1999, in                
          which the IRS determined that petitioners had an overpayment of             








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