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Commissioner, T.C. Memo. 2002-285. Therefore, Mr. Leiba’s
failure to inform petitioner that she could seek relief under
subsection (c) is insufficient to overcome the bar of res
judicata.
Petitioner’s counsel contends that a month before Mr.
Pacheco’s death, petitioner and Mr. Pacheco had “definitively
settled” the taxes for 1995 and 1996 with RA Lunny. On April 25,
2000, RA Lunny completed the tax examination report, and the file
was sent to the Appeals Office. Petitioner’s counsel argues that
the prior proceeding effectively concluded at the point when the
file left RA Lunny’s office. Therefore, petitioner did not have
an opportunity to raise relief under subsection (c) in the prior
proceeding.
RA Lunny testified that his role was to make
recommendations, and it was up to the Appeals Office to “make the
final call” on whether to accept them. The Court, after
reviewing the evidence presented by petitioner and respondent,
agrees with respondent that the prior proceeding was not final at
the time the file left RA Lunny’s office.
Petitioner could have raised relief under subsection (c) in
the prior proceeding at any time between Mr. Pacheco’s death on
May 22, 2000, and the entry of the decision document on June 29,
2000. Even after the decision has been entered, under Rule 162,
petitioner could have moved to vacate the decision within 30 days
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