George A. Lovenguth - Page 14




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          if Lovenguth has been competent enough to “handle his own                   
          affairs” since leaving the VA hospital in 1995, then he is                  
          competent enough to enter into a stipulation of facts.  See                 
          Bakare, T.C. Memo. 1994-72.                                                 
               To suggest that Lovenguth understood the consequences of               
          signing the stipulation of fact just because he is no longer                
          institutionalized would be too high a hurdle.  The Rule tells us            
          to look not at whether a petitioner has the bare competence                 
          sufficient to avoid involuntary commitment, but to the justice of           
          the particular situation.  We do wish to stress that we do not              
          believe that IRS counsel is in any way guilty of misconduct--in             
          an adversarial system, counsel is expected to zealously represent           
          his client.  It is just that in the peculiar circumstances of               
          this case--with a mentally disabled and sometimes voluble                   
          taxpayer representing himself--it is very easy to create a                  
          situation of deep misunderstanding between the parties.  In this            
          case we conclude that justice requires us to set aside the                  
          stipulation of facts and vacate the order submitting the case for           
          decision on that stipulation.                                               

                                             An appropriate order will be             
                                        issued granting petitioner’s                  
                                        motion.                                       









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