Estate of Burton W. Kanter, Deceased, Joshua S. Kanter, Executor, and Naomi R. Kanter, et al. - Page 219

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            183, we need not address the point in the context of these cases.                           
            We proceed with the review of the STJ report mandated by the                                
            Courts of Appeals and apply the “manifestly unreasonable”                                   
            standard of deference as more fully described in the caselaw                                
            discussed below.                                                                            
                  In Ballard v. Commissioner, 544 U.S. at 54-55, the Supreme                            
            Court addressed the deference that is due a Special Trial Judge’s                           
            recommended findings of fact under Rule 183 as follows:                                     
                        Rule 183(c)’s origin confirms the clear                                         
                  understanding, from the start, that deference is due to                               
                  factfindings made by the trial judge.  Commenting in                                  
                  1973 on then newly adopted Rule 182(d), the precursor                                 
                  to Rule 183(c), the Tax Court observed that the Rule                                  
                  was modeled on Rule 147(b) of the former Court of                                     
                  Claims.  Tax Ct. Rule 182 note, 60 T.C. 1150, (Tax                                    
                  Court review procedures were to be “comparable” to                                    
                  those used in the Court of Claims).  Rule 182(d)’s                                    
                  “[d]ue regard” and “presumed to be correct”                                           
                  formulations were taken directly from that earlier                                    
                  Rule, which the Court of Claims interpreted to require                                
                  respectful attention to the trial judge’s findings of                                 
                  fact.  See Hebah v. United States, 456 F.2d 696, 698                                  
                  (Cl. Ct. 1972) (per curiam) (challenger must make a                                   
                  “strong affirmative showing” to overcome the                                          
                  presumption of correctness that attaches to trial judge                               
                  findings).  The Tax Court’s acknowledgment of Court of                                
                  Claims Rule 147(b) as the model for its own Rule,                                     
                  indeed the Tax Court's adoption of nearly identical                                   
                  language, lead to the conclusion the Tax Court itself                                 
                  expressed:  Under the Rule formerly designated Rule                                   
                  182(b), now designated 183(c), special trial judge                                    
                  findings carry “special weight insofar as those                                       
                  findings are determined by the opportunity to hear and                                
                  observe the witnesses.”  Tax Ct. Rule 182 note, 60 T.C.                               
                  1150 (1973); see Stone v. Commissioner, 865 F.2d 342,                                 
                  345 (CADC 1989).  [Fn. ref. omitted.]                                                 
            We briefly examine the Hebah and Stone cases cited by the                                   
            Supreme Court above.                                                                        





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