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credibly, through deposed witnesses, how the word could
have arrived on Petitioner’s file. Petitioner was
denied subpoena power of representatives at the IRS
whom had previously conveyed to Petitioner’s counsel
that this record could only be accomplished by and a
direct result of receiving correspondence from
Petitioner, as a direct result of Petitioner attempting
to satisfy substantiation that he in fact had five
children. [Reproduced literally.]
Firstly, July 28, 2003, the date of the item we understand
petitioner to be directing our attention to, is 10 days after
respondent issued the notice of deficiency, 2 days after
petitioner first consulted Moffatt, and 1 day after petitioner
retained Moffatt. Moffatt did not provide the documents to
respondent by July 28, 2003 (supra note 19). In order to believe
that this item shows that, on July 28, 2003, respondent received
the documents from petitioner, it appears that we also would have
to believe that either (a) petitioner did not tell Moffatt that
he had just sent the documents to respondent or (b) petitioner
did tell this to Moffatt but Moffatt did not then memorialize
this information in a declaration by petitioner20 but instead let
the supposed communication slip until Moffatt noticed the item on
the stipulated exhibit that respondent provided to Moffatt later
during the course of preparing the stipulations and exhibits in
connection with the instant litigation costs motion.
20 As noted, supra, the stipulated declaration by petitioner
is that he sent the documents to respondent “On or about May
2003”.
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