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Petitioner has the burden of proof on this issue.
In his second legal memorandum, petitioner points to the
requirements of section 301.7430-1(b)(1)(i), Proced. & Admin.
Regs., and states that Moffatt had a conference with Ace and this
constituted compliance with the requirements of that regulation.
The cited regulation provides as follows:
(i) The party, prior to filing a petition in the
Tax Court or a civil action for refund in a court of
the United States (including the Court of Federal
Claims), participates, either in person or through a
qualified representative described in �601.502 of this
chapter, in an Appeals office conference; * * *
The first communication between Moffatt and Ace was on May 24,
2004, 8 months after September 22, 2003, when the petition was
filed. Plainly, petitioner did not participate in an Appeals
Office conference, either in person or through Moffatt, “prior to
filing a petition in the Tax Court”, and so petitioner has not
complied with the requirements of section 301.7430-1(b)(1)(i),
Proced. & Admin. Regs.
As to petitioner’s additional contentions, items (a) and (b)
seem to relate to the charge that respondent refused to settle
the tax case unless petitioner waived any litigation cost claim.
Although petitioner makes the charge, petitioner does not direct
our attention to any affidavit or other evidence in the record
supporting the charge. Ace’s case activity record, Exhibit 8-J,
indicates that Moffatt told her that he would not agree to a
settlement unless respondent conceded an award of litigation
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