Fred A. Windover - Page 8




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              Ultimately, through correspondence over several months and a            
         telephone conference on or about April 6, 2005, petitioner’s                 
         administrative hearing was conducted.  In essence, petitioner’s              
         positions at the administrative hearing can be summarized as                 
         follows:  (1) The NFTL for 1999 should not have been filed until             
         an administrative hearing was conducted with respect to                      
         respondent’s notice of intent to levy; (2) the proceeds of the               
         1999 check were misapplied to liabilities for years other than               
         1999;5 and (3) petitioner’s request for abatement of additions to            
         tax was not properly considered.                                             
              In response to petitioner’s second point, respondent                    
         explained his actions by pointing out to petitioner that the 1999            
         check was not designated to be applied to any particular year.               
         In response to this explanation, in correspondence that predated             
         the telephone conference, petitioner noted, “in fact * * * [the              
         1999 check] was sent with my 1999 return and was for the exact               
         amount shown as due on that return.  I believe almost anyone                 
         would consider a check sent with a particular year (1999) in the             



               5  Petitioner also submitted an offer-in-compromise (doubt             
          as to liability) during the administrative hearing as an                    
          alternative to the proposed collection devices.  The offer was              
          rejected.  Several times during petitioner’s presentation at                
          trial he expressly stated that he does not rely upon the denial             
          as a ground in support of his position that respondent’s                    
          determination to proceed with collection of his 1999 tax                    
          liability is an abuse of discretion.                                        






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