Wayne Smith - Page 18



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          in an arbitrary or capricious manner in rejecting petitioner’s              
          OICs, which were largely premised on his position that he could             
          not afford to make a larger payment.                                        
               Finally, we note that the IRS Manual on Notice in Levy Cases           
          provides that in deciding whether to levy on a retirement                   
          account, the Commissioner’s Appeals Office should determine                 
          “whether the taxpayer’s conduct has been flagrant [, with] * * *            
          some examples of flagrant conduct [being] * * * Taxpayers who               
          have placed other assets beyond the reach of the government [by]            
          * * * dissipating them.”  Administration, Internal Revenue Manual           
          (CCH), Notice to Levy, sec. 5.11.6.2(5) at 16,719.  In this case,           
          the Kansas City Tax Clinic candidly shared with respondent the              
          details of petitioner’s gambling addiction.  We are convinced,              
          based on this evidence, and our examination of both petitioner’s            
          financial statements and the rapidly declining IRA balances as              
          previously detailed in this report, that a large portion of the             
          $660,194 withdrawn from petitioner’s IRA accounts between 1998              
          and 2003 went to fund his gambling addiction.                               
               We are further convinced by our examination of the Bank of             
          America statements that detail petitioner’s account balances as             
          of January 2001, that at the time that petitioner would have been           
          required to pay his Federal income tax owing for all of the years           
          in issue he could have done so, but elected not to for the                  
          benefit of his proclivity for racetracks and casinos.  Finally,             
          we are convinced, in the light of the above IRS Manual guidance,            







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