UNITED STATES TAX COURT

CLC

T.C. Memo. 2012-344

UNITED STATES TAX COURT

KARL E. CROSS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6009-09.

Filed December 13, 2012.

Mitchell Stuart Fuerst and Joseph A. DiRuzzo III, for petitioner.

Brian E. Derdowski, Jr., and Carroll De Groff Lansdell, for respondent.

MEMORANDUM OPINION

JACOBS, J_udge: This matter is before the Court on petitioner's motion to

dismiss for lack ofjurisdiction (petitioner's motion) pursuant to Rule 53.1 The

IPetitioner's motion is premised on the principles set forth in Scar v.

Commissioner, 814 F.2d 1363 (9th Cir. 1987), rev'g 81 T.C. 855 (1983).

SERVEDDec132012

-2[*2] issue to be decided concerns the validity of the notice of deficiency and

whether respondent "determined" a deficiency in petitioner's 2004 Federal income

tax within the meaning of section 6212(a).

Unless otherwise indicated, all section references are to the Internal

Revenue Code in effect for the year at issue, and all Rule references are to the Tax

Court Rules of Practice and Procedure.

Background

Petitioner resided in Florida at the time he filed his petition. On February

19, 2009, respondent mailed separate copies of a notice of deficiency to petitioner

and his wife, Melissa.2 The notice consisted of different documents, including a

transmittal letter, Letter 531-T, which stated:

2Mrs. Cross received a copy of the notice of deficiency because the 2004

Federal income tax return was filed as a joint return. Mrs. Cross filed a petition on

April 20, 2009 (docket No. 9480-09). In her petition Mrs. Cross asserted, inter

alia, that she was an innocent spouse under sec. 6015. Mr. Cross intervened as a

nonrequesting spouse pursuant to sec. 6015(e)(4) and Rule 325. The caption of

docket No. 9480-09 was changed to include Mr. Cross as intervenor.

On August 22, 2011, Mrs. Cross and respondent filed a joint motion to

dismiss intervenor and to change caption. Mrs. Cross asserted, and respondent

agreed, that she had not signed the purported joint return, nor had she authorized

Mr. Cross to sign the return on her behalf. Consequently, Mrs. Cross agreed with

respondent that she was not entitled to relief under sec. 6015. We granted the joint

motion to dismiss intervenor and change caption. The Court of Appeals for the

Eleventh Circuit affirmed our order dismissing Mr. Cross as an intervenor. Cross

v. Commissioner, No. 11-15309 (11th Cir. Nov. 27, 2012).

-3[*3] NOTICE OF DEFICIENCY

We have determined that you owe additional tax or other amounts,

or both, for the tax year(s) identified above. This letter is your

NOTICE OF DEFICIENCY, as required by law. The enclosed

statement shows how we figured the deficiency.

Letter 531-T informed the reader that the notice of deficiency related to the

tax year ended December 31, 2004, and that for that year respondent had

determined a deficiency of $3,034,424, an addition to tax pursuant to section

6651(a)(1) of $716,551.25, and a penalty pursuant to section 6662A (the accuracy

related penalty on understatements with respect to reportable transactions) of

$875,663.04.

One document, Form 4549, Income Tax Examination Changes, detailed the

adjustments made to petitioner's income tax return. Form 4549 recalculated

petitioner's income, his expenses reported on Schedule C, Profit or Loss From

Business, deductions, exemptions, and child tax credits. Lines 1.a., 1.b., and 1.c.

of Form 4549 referred to three Schedules C. One Schedule C claimed a deduction

of $1,081,188 in "other expenses"; another Schedule C claimed a deduction of

$202,387 in "other expenses"; and a third claimed $4,870,990 in "other expenses".

With all "other expenses" combined, respondent increased petitioner's income by

$6,154,565 as a consequence of disallowing the claimed deduction of "other

-4[*4] expenses".3 Line 1.d. of Form 4549 refers to a $2,185,083 adjustment to

petitioner's income arising from "419 Income".

Another document, Form 886-A, Explanation of Items, listed several checks

written by petitioner, to wit:

Amounts paid during the 2003 calendar year

Check No.

Bank

Date

Amount

Payee

Memo Sect.

120

First Union

National Bank

3-13-03

$200,000

Benistar 419

Plan & Trust

236

First Union

National Bank

10-14-03

330,000

Benistar 419

Plan & Trust

2003 contribution

---

Amounts paid during the 2004 calendar year

Check No.

Bank

Date

Amount

Paym

Memo Sect.

0094

Eagle National

Bank

5-28-04

$131,200

Benistar 419

Plan & Trust

2003 contribution

26969

3Petitioner noted that 10 Schedules C were a part of his 2004 return, but the

notice of deficiency lists only three. As will be discussed infra, respondent

conducted his examination of petitioner's return by reviewing the RTVUE

transcript of the income tax return, not the return itself. The Internal Revenue

Service employee who input petitioner's information into the RTVUE transcript

apparently combined the data from eight Schedules C into a single Schedule C, the

one claiming a deduction of $4,870,990 as other expenses.

The RTVUE transcript is the computerized record of line items from Form

1040, U.S. Individual Income Tax Return, Form 1040A, U.S. Individual Income

Tax Return, and Form 1040EZ, Income Tax Return for Single and Joint Filers

with No Dependents, and their accompanying schedules. The RTVUE is created

as tax returns are processed at the various Internal Revenue Service Centers. See

Whittington v. Commissioner, T.C. Memo. 1999-279, n.3.

-5[*5] 454

0098

Wachovia

11-15-04

750

Eagle National

Bank

12-29-04

1,523,133

Benistar 419

Plan

Benistar 419

Plan & Trust

Acct 21388 annual

admin fee 750

2003 contribution final

see Mr. Neumann

The Form 886-A also listed the three Schedules C referred to on Form 4549. The

Form 886-A then offered the following explanation with respect to respondent's

determinations:

I.

Schedule C deductions disallowed

A.

The deductions claimed on each Schedule C for

"Other Expenses" are disallowed because the taxpayer [sic]

has not substantiated that these deductions relate to payment

of ordinary and necessary expenses incurred by the respective

trade or business reported on the Schedule C.

B.

To the extent that any portion of the disallowed

deductions relate to amounts paid in connection with

participation in the Benistar 419 Plan or another arrangement

purported to be a welfare benefit fund, such deductions are

disallowed because the taxpayer [sic] has not substantiated

that the arrangement was a welfare benefit fund and that such

amounts are deductible consistent with the rules provided

under I.R.C. §§ 419 and 419A.

II.

Assets invested through the Benistar 419 Plan, paid for the

benefit of the taxpayers, are includible in income

A.

The business referred to as LTC Staffing Services, LLC,

made payments to the Benistar 419 Plan as summarized above.

The taxpayers have not substantiated that the Benistar 419 Plan

is a welfare benefit plan, or that it is anything other than a means

for the owners of closely held businesses to invest in cash value

life insurance policies through a trust. The taxpayers have not

-6[*6]

shown that their interest(s) in the assets held for their benefit in

the Benistar 419 Plan are contingent or subject to a substantial

risk of forfeiture. The taxpayers have not shown that benefits

were provided through the Benistar 419 Plan to persons other

than the taxpayers. Accordingly, the assets invested through

the Benistar 419 Plan are includible in income under I.R.C. §

61, 72, 83 and 402(b)(1), and 402(b)(4). The taxpayers have

not cooperated with the income tax examination, and as a result,

the best information available as to the value of the assets held

for the taxpayers' benefit in the trust associated with the

Benistar 419 Plan, or their vested accrued interest therein,

are the payments summarized above.

The Form 886-A discussed violations of section 402(b)(2) by the Benistar 419

Plan, as well as how the value of assets invested through the plan is includible in

income under section 1.61-22, Income Tax Regs. It further discussed the

additions to tax and penalties respondent determined. The remainder of the form

reviewed respondent's recalculation of petitioner's Federal income tax liability

resulting from his.determinations, as well as his computation of interest. Finally,

the notice of deficiency included a form entitled "How To Pay Your Taxes" that

could be used should petitioner agree with the results of the examination.

Petitioner did not agree with the results of the examination. On March 11,

2009, petitioner filed his petition with this Court, and a trial was scheduled for

January 11, 2010. The parties jointly moved to continue the scheduled trial, and

the motion was granted. The trial was rescheduled for May 17, 2010. On March

-7[*7] 19, 2010, petitioner and respondent filed (1) another joint motion to continue

and (2) a stipulation to be bound.

In the joint motion for continuance, the parties stated:

5.

Since the previous continuance motion was filed, the parties

have commenced review of the case by respondent's Appeals Office.

Additionally, the parties have discussed the issues in this case, and

have focused first on the Benistar 419 Plan issue. The parties are

filing a Stipulation to Be Bound, contemporaneously with this

motion, which resolves issues relating to the Benistar 419 Plan.

6.

The Stipulation to Be Bound will allow for resolution of the

adjustments determined by the notice of deficiency that relate to

the Benistar Plan, by reference to the case of Mark and Barbara

Curcio, docket number 1768-07, et al. * * *.

7.

Remaining income tax issues include possible participation in

the SADI Plan, an arrangement described as a 10-or-more-employer

welfare benefit plan (a different plan than the Benistar 419 Plan),

and other deductions.

The stipulation to be bound stated that respondent's adjustments to income,

as calculated on Form 4549, would be redetermined in the same manner as

adjustments to income would be determined by the highest court resolving each of

any of four test cases involving the "Benistar 419 Advantage Plan" or

"Benistar 419 Plan". The four test cases in question were Curcio v.

Commissioner, docket No. 1768-07, Jelling v. Commissioner, docket No. 176907, Smith v. Commissioner, docket No. 14822-07, and Mogelefsky v.

-8[*8] Commissioner, docket No. 14917-07. The stipulation to be bound also stated

that the applicability of the section 6662A penalty would be determined by

reference to the determination of the highest court resolving either of two penalty

test cases. The two penalty test cases were McGehee Family Clinic v.

Commissioner, docket No. 15646-08, and Prosser v. Commissioner, docket No.

15647-08. Both the joint motion for continuance and the stipulation to be bound

were signed by petitioner's counsel, Mitchell S. Fuerst, on March 17, 2010.

We agreed to further continue trial in this matter on two other occasions on

the basis of parties' representation that settlement negotiations were ongoing and

a continuance would save the parties and the Court significant time in the

presentation of unresolved issues.4

The interaction between petitioner and respondent deteriorated after the case

was continued, and on July 25, 2011, Mr. Fuerst filed petitioner's motion. In his

motion, petitioner, through counsel, asserted:

This Motion is based upon the principals [sic] set forth by Scar v.

Comm'r, 814 F.2d 1363 (9th Cir. 1987), Bell Atlantic v. Twombly,

550 U.S. 554 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

As will be demonstrated below, Respondent has failed to abide by

the principles enunciated in the abovementioned cases and has

4As of this time Mrs. Cross' case continued to be intertwined with

petitioner's case and it was represented that resolution of her case would be

assisted by a continuance of his case.

-9[*9] attempted to conceal this failure through obfuscation and a false

presentation of the issues that should not be before this honorable

Court. This conduct has persisted from the commencement of the

examination of Petitioner's joint income tax return, through the

inception of this proceeding, through today.

In his motion, petitioner, through counsel, alleged that respondent failed to

conduct an examination of his 2004 tax return, with the result that (1) respondent

disallowed alleged deductions regarding contributions to the Benistar 419 plan

even though respondent was aware that petitioner had participated in, and made

payments in 2003 to, the SADI plan, not the Benistar 419 plan; (2) respondent

imposed a section 6651(a) addition to tax for petitioner's failure to timely file his

return even though he qualified for an extension of time to file as a result of

hurricane damage, as described in Publication 4492, Information for Taxpayers

Affected by Hurricanes Katrina, Rita, and Wilma; and (3) respondent ignored rules

that deem contributions to an employee benefit plan to have been made on the last

day of the preceding taxable year if the payment for that year is made no later than

the time prescribed by law for filing that year's return (including extensions

thereof). Petitioner's counsel further asserted that despite being well aware that

petitioner did not participate in the Benistar 419 plan, respondent "drafted and

lured Counsel for Petitioner into a 'Stipulation to be Bound' where Petitioner

agreed to be bound by * * * any of a list of cases all involving tax consequences

- 10 [*10] stemming from participation in Benistar". Further, petitioner's counsel

alleged that "after counsel for Petitioner finally discovered the truth", i.e., that

petitioner did not participate in the Benistar 419 plan, respondent acknowledged

that "he knew all along" that petitioner had not participated in the Benistar 419

plan, but that respondent "has since expressed the idea that it was unnecessary for

him to replead his case because the Statutory Notice [of deficiency] provided

language that contemplated disallowing a deduction for a contribution to SADI."

A hearing with respect to petitioner's motion was held on October 17, 2011.

At the hearing, it emerged that the notice of deficiency and petitioner's 2004

Federal income tax return were not in the record. Respondent was directed to

provide copies of both of these documents.

Petitioner's counsel and respondent continued to correspond. During their

discussions, it emerged that instead of examining petitioner's 2004 Federal income

tax return, respondent had reviewed the RTVUE transcript of petitioner's Federal

income tax return. A copy of the RTVUE transcript used in the examination was

sent to Mr. Fuerst on December 6, 2011, but it appears the transcript was lost in

the mail. Respondent mailed a second copy of the RTVUE transcript, along with

copies of an AMDISA transcript, an IMFOLT transcript, a Form 2848, Power of

Attorney and Declaration of Representative, signed by petitioner and Mr. Fuerst,

- 11 [*11] as well as other documents, to petitioner's counsel on December 15, 2011.

The copy of the RTVUE transcript mailed to Mr. Fuerst was printed on November

29, 2007. On January 17, 2012, Mr. Fuerst filed Petitioner's Supplemental Motion

to Dismiss for the United States Tax Court's Lack of Jurisdiction (supplemental

motion). In the supplemental motion Mr. Fuerst asserts that respondent's reliance

upon the RTVUE transcript in his examination invalidates the notice of deficiency.

Discussion

This Court is a court of limited jurisdiction and may exercise that

jurisdiction only to the extent authorized by Congress. Sec. 7442; Naftel v.

Commissioner, 85 T.C. 527, 529 (1985). We have jurisdiction to redetermine a

taxpayer's Federal tax liabilities in a deficiency proceeding where the

Commissioner has issued a valid notice of deficiency and the taxpayer has timely

filed a petition. Secs. 6212 and 6213; Rule 13(a), (c); Gustafson v. Commissioner,

97 T.C. 85, 89 (1991). If no valid notice of deficiency was issued, we are

compelled to dismiss the case. Monge v. Commissioner, 93 T.C. 22, 27 (1989).

It is well settled that no particular form is required for the notice of

deficiency to be valid. See Benzvi v. Commissioner, 787 F.2d 1541, 1542 (11th

Cir. 1986); Jarvis v. Commissioner, 78 T.C. 646, 655 (1982). The Court of

Appeals fbr the Eleventh Circuit, the court to which this case is appealable barring

- 12 [*12] a stipulation to the contrary, has held that the notice will be treated as valid

if the Commissioner demonstrates that "'the IRS has determined that a deficiency

exists for a particular year and specif[ies] the amount of the deficiency.'"

Stoecklin v. Commissioner, 865 F.2d 1221, 1224 (1 lth Cir. 1989) (quoting Benzvi

v. Commissioner, 787 F.2d at 1542), aff'g T.C. Memo. 1987-453.

Petitioner, through counsel, makes two main arguments. First, he cites Scar

v. Commissioner, 814 F.2d 1363 (9th Cir. 1987), rev'a 81 T.C. 855 (1983), and its

progeny in support of his contention that the subject notice of deficiency is

invalid. Second, he asserts that a notice of deficiency is a civil complaint against

petitioner, and in the instant case the complaint failed to meet the pleading

requirements of the Federal Rules of Civil Procedure.

I.

The Validity of the Notice of Deficiency Under Scar v. Commissioner

In Scar, the notice of deficiency sent to the taxpayers was factually

incorrect. The notice indicated that the Commissioner was disallowing a

deduction for losses in a partnership called the Nevada Mining Project, in which

the taxpayers had no interest or involvement whatsoever. See Scar v.

Commissioner, 865 F.2d at 1365. The notice also stated that the Commissioner

had not actually examined the taxpayers' income tax return. See id. Finally,

- 13 [*13] in calculating the taxpayers' tax liability, the Commissioner simply applied

the top mtarginal rate of the time (i.e., 70%), instead of using the progressive tax

rates prescribed in the Code. Id.

The Court of Appeals for the Ninth Circuit held that the notice of deficiency

sent to the Scars was invalid. The court indicated that the determination

requirement of section 6212(a) has substantive content. Id. at 1369. The Court of

Appeals stated "that the Commissioner must consider information that relates to a

particular taxpayer before it can be said that the Commissioner has 'determined' a

'deficiency' in respect to that taxpayer. To hold otherwise would entail ignoring

or judicially rewriting the plain language of the Internal Revenue Code." Id. at

1368-1369. The Court of Appeals in Scar found no "determination" had been

made by the Commissioner because "the Commissioner's purported notice of

deficiency revealed on its face that no determination of tax deficiency had been

made". Id. at 1370.

In Clapp v. Commissioner, 875 F.2d 1396 (9th Cir. 1989), the Court of

Appeals clarified its holding in Scar, stating: "Scar * * * [does not] require any

affirmative showing by the Commissioner that a determination set forth in an

alleged notice of deficiency was made on the basis of the taxpayers' returns. Only

where the notice of deficiency reveals on its face that the Commissioner failed to

- 14 [*14] make a determination is the Commissioner required to prove that he did in

fact make a determination." Id. at 1402. In Kong v. Commissioner, T.C. Memo.

1990-480, we stated: "Thus, the Court of Appeals for the Ninth Circuit has stated

the general rule that where the notice of deficiency reveals on its face that the

Commissioner failed to make a determination, respondent is entitled to prove that

he did in fact make a determination."

In the motion to dismiss, petitioner's counsel posits that the principles set

forth in Scar are applicable in this case for several reasons: respondent ignored "a

plethora of information" that supported petitioner's position; respondent "falsely

asserted that Petitioner participated in Benistar when in fact he knows that

Petitioner participated in SADI"; the checks written to the Benistar 419 Plan in

2004 were, in fact, payments relating to petitioner's 2003 tax year; and the notice

of deficiency's blanket disallowance of all Schedule C business expense

deductions indicates that respondent failed to consider this information in relation

to petitioner's return. In the supplemental motion petitioner's counsel asserts that

respondent's reliance on the RTVUE transcript during the examination invalidates

the notice of deficiency because the content of the RTVUE transcript provides no

- 15 [*15] support for the notice of deficiency.5 Specifically, petitioner's counsel

asserts that Schedule C, Part V, Other Expenses, provides a detailed accounting

regarding what expenses the claimed Line 27, Other Expenses consists of (e.g.,

amortization, bank fees, education expenses, etc.). By disallowing these expenses

in toto, rather than reviewing each expense in detail, petitioner's counsel asserts

respondent could not have made a determination. Consequently, according to

petitioner's counsel, (1) the notice of deficiency is invalid on its face, (2) the Court

lacks jurisdiction, and (3) the petition must be dismissed.

We disagree with the position taken by petitioner's counsel. His arguments

in both the motion to dismiss and the supplemental motion are arguments as to the

correctness of respondent's determinations in the notice of deficiency, not the

validity of the notice of deficiency. Consequently, these arguments do not support

the position he takes because our jurisdiction in this matter does not hinge on the

correctness (or incorrectness) of respondent's determinations in the notice of

deficiency. As the Court of Appeals for the Ninth Circuit stated in Scar:

5In the supplemental motion petitioner's counsel maintains that respondent

could not have credibly relied on the RTVUE transcript because it was not printed

until April 6, 2009, well after the notice of deficiency was mailed on March 23,

2009. However, respondent demonstrated to the Court's satisfaction that, in fact,

the RTVUE transcript had been printed on November 29, 2007. It appears the

confusion arose because of the complicated nature of the transcripts respondent

used in conducting his examination of petitioner's tax return.

- 16 [*16] It is, of course true, as the dissent points out, that Tax Court jurisdiction

does not depend on the existence of an actual deficiency. * * * It is the

purpose of the Tax Court to determine whether the Commissioner's

determination is correct. * * * "'[I]t is not the existence of a deficiency

but the Commissioner's determination of a deficiency that provides a

predicate for Tax Court jurisdiction."'

Scar v. Commissioner, 814 F.2d at 1370 n. 10 (citations omitted). Unlike Scar, in

this case respondent clearly determined that there was a deficiency. On Form 886A of the notice of deficiency, respondent specifically lists checks written by

petitioner's company to the Benistar 419 Plan & Trust (or to the Benistar 419

Plan) in 2004. We are satisfied that, unlike Scar, in this case there is at least some

link between petitioner and the Benistar 419 Plan. See Bokum v. Commissioner,

992 F.2d 1136, 1139 (11th Cir. 1993) (distinguishing Scar), aff'a T.C. Memo.

1990-21. Indeed, during the hearing with respect to petitioner's motion,

petitioner's counsel, Mr. Fuerst, admitted that petitioner was the signatory on the

checks.

It is noteworthy that the notice of deficiency refers specifically to the other

expense deductions petitioner claimed on line 27 of Schedule C of his Federal

income tax return, and the amounts respondent disallowed match exactly the

amounts petitioner claimed. We are satisfied that respondent's agent, at a

minimum, reviewed the RTVUE transcript and saw the "Other Expense"

- 17 [*17] deductions petitioner claimed. Petitioner does not dispute that the amounts

appearing on the RTVUE transcript are the same as the amounts appearing on his

2004 income tax return. And we have previously held that the use of an RTVUE

transcript in circumstances similar to these does not invalidate a notice of

deficiency. See Whittington v. Commissioner, T.C. Memo. 1999-279.

Scar applies only in the narrowest of circumstances, specifically where the

notice of deficiency on its face reveals that the Commissioner failed to make a

determination. See Campbell v. Commissioner, 90 T.C. 110, 112-113 (1988).

The facts in this matter are readily distinguishable from those in Scar. In this

matter, the notice of deficiency specifically addresses petitioner's income tax

return. Unlike the notice in Scar, here the notice of deficiency does not state that

the income tax is being determined at the maximum rate simply to protect the

Government's interest. It does not refer to a tax shelter with which petitioner had

no relationship. Nor does the notice of deficiency indicate that petitioner's tax

return (or the transcript thereof) was never examined. In sum, we cannot say that

the notice of deficiency reveals on its face that respondent failed to determine a

deficiency.

- 18 [*18] II.

Application of the Federal Rules of Civil Procedure to Notices of

Deficiency

Petitioner's counsel asserts that the notice of deficiency is equivalent to a

civil complaint/pleading and that it fails the pleading requirements of rule 8 of the

Federal Rules of Civil Procedure (involving a plaintiff's claim for relief).

Petitioner's counsel cites no authority, and we are aware of none, which

characterizes a notice of deficiency as a civil complaint/pleading governed by the

Federal Rules of Civil Procedure.6 Nor does counsel cite any authority applying

the Federal Rules of Civil Procedure to a notice of deficiency. The validity of the

notice of deficiency is governed by a statute enacted by Congress, i.e., section

6212, not by the pleading rules of the Federal Rules of Civil Procedure. And our

jurisdiction, governed by a statute enacted by Congress, i.e., section 6213(a),

arises from the issuance of a valid notice of deficiency. It has been said that

notices of deficiency are "tickets the Tax Court". See Laing v. United States, 423

U.S. 161, 206 (1976).

6In Bokum v. Commissioner, T.C. Memo, 1990-21, aff'd, 992 F.2d 1136

(11th Cir. 1993), we noted that because a notice of deficiency does not result in

final liability on the part of taxpayers, the issuance of a notice of deficiency is

analogous to the filing of a civil complaint. However, our analogy was that the

notice of deficiency is the document which initiates a case in the Tax Court, not

that the pleading rules of the Federal Rules of Civil Procedure apply to the notice

of deficiency.

- 19 [*19] III.

Conclusion

The notice of deficiency demonstrates on its face that respondent

determined a deficiency for petitioner's 2004 tax year, and it states the

amount of the deficiency so determined. We thus hold that we have jurisdiction to

redetermine petitioner's 2004 Federal tax liability. Consequently, we will

deny petitioner's motion as supplemented.7

An appropriate order will

be issued.

7As noted supra pp. 6-8, petitioner's attorney, Mr. Fuerst, signed a

stipulation to be bound with respect to several issues in this case. The test cases

have since been resolved in favor of the Commissioner. See, e.a., McGehee

Family Clinic v. Commissioner, T.C. Memo. 2010-202; Curcio v. Commissioner,

T.C. Memo. 2010-115, aff'd, 689 F.3d 217 (2d Cir. 2012). In the motion to

dismiss, Mr. Fuerst makes numerous allegations including that he was misled into

signing that stipulation to be bound and he was unaware that petitioner was not

involved in the Benistar 419 plan at that time.

Mr. Fuerst is a longtime member of the Tax Court bar, is an experienced

attorney, and was formerly an attorney in the Commissioner's Office of Chief

Counsel. We are skeptical that he could be induced to consent to such an

important agreement by respondent's counsel without any supporting materials to

justify its signing. But we need not make a determination with respect to Mr.

Fuerst's allegations. Even if true, they would not affect our analysis regarding the

validity of the notice of deficiency.