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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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Last modified: November 10, 2007