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are any factual inferences to be made, we make them in favor of
the party opposing summary judgment--in this case, the Nicholses.
See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The
Nicholses may not, however, rest on their pleadings but “must set
forth specific facts showing that there is a genuine issue for
trial.” Rule 121(d); Dahlstrom v. Commissioner, 85 T.C. 812,
820-21 (1985).
A. Challenge to Deficiency
The first issue is whether the Nicholses can apply their
NOLs to reduce the tax liability that they agreed the
Commissioner could assess when they signed the Form 870. If this
case was one under section 6213(a) to redetermine a deficiency,
the answer would be easy: The Supreme Court itself has ruled
that a waiver of assessment, signed before the Commissioner sends
a notice of deficiency, is fully effective and allows the
Commissioner to begin collection immediately after assessment.
See United States v. Price, 361 U.S. 304, 313 (1960). Courts
uniformly understand that signing a Form 870 means giving up the
right to come to Tax Court with a deficiency suit. See Smith v.
United States, 328 F.3d 760, 766-767 (5th Cir. 2003); Phila. &
Reading Corp. v. United States, 944 F.2d 1063, 1067 (3d Cir.
1991); Kalil v. Enochs, 295 F.2d 467, 469 (5th Cir. 1961) (and
cases cited there); Webster v. Commissioner, T.C. Memo. 1992-538.
The Nicholses claim that they are not trying to rewrite the
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