Joseph Giamelli - Page 9




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          installment agreement because he was not in compliance with his             
          estimated tax payments for tax years after 2001.  Reliance on a             
          failure to pay current taxes in rejecting a collection                      
          alternative does not constitute an abuse of discretion.  See Orum           
          v. Commissioner, 123 T.C. 1, 4, 13 (2004), affd. 412 F.3d 819               
          (7th Cir. 2005).                                                            
               The estate has not presented any evidence to suggest the               
          Appeals officer abused her discretion in rejecting Mr. Giamelli’s           
          proposed installment agreement.  Accordingly, without any                   
          evidence to the contrary, we find that respondent’s Appeals                 
          Office did not abuse its discretion in sustaining the proposed              
          collection action based on the record before it.                            
               We now turn to arguments raised by the estate’s new counsel            
          for the first time after Mr. Giamelli’s death.2  The estate now             
          argues that Mr. Giamelli overstated his income tax liability in             
          an effort to conceal fraudulent business dealings, and that                 
          consequently the estate is only a partial successor in interest             
          to Mr. Giamelli.  The estate reasons that because the estate has            
          an interest in conflict with Mr. Giamelli, it should be allowed             


               2The estate’s new arguments were not raised in the petition            
          by the former counsel for Mr. Giamelli.  Accordingly, were this             
          case to survive summary judgment, the estate would be required to           
          seek leave to amend the petition.  By informal agreement, the               
          parties have argued respondent’s motion for summary judgment                
          presuming the estate would be permitted to raise these new                  
          arguments, and respondent argues for summary judgment even if               
          these new arguments were accepted as true.                                  






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