of material fact" lacks any reference to the "final and conclusive" effect respecting liability, or to the Internal Revenue Code itself, as does Form 866.
Essentially, the form utilized by the IRS in this case is not prescribed by the IRS to be used as a closing agreement. The Form 2751-AD itself does not purport to be a closing agreement and contains no language suggesting that it represents plaintiff's final agreement concerning the tax liability periods at issue. Accordingly, the court finds that the Form 2751-AD advanced by defendant is not a closing agreement under section 7121 and does not foreclose plaintiff from judicial review herein.
Defendant's contention that this result places form over substance is without merit. Although the court is aware of the fact that there is no statutory requirement that any particular form be used, the only basis for defendant's claim that Form 2751-AD created a closing agreement resides in the inclusion of language paralleling section 7151: "If this offer is accepted, the case shall not be reopened in the absence of fraud, malfeasance, concealment or misrepresentation of material fact, or an important mistake in mathematical calculation." If the court were to endorse defendant's approach, it would effectively import the operative effect of section 7121 into a document that does not comply with the prescribed format for effecting a closing agreement, merely by virtue of token "boilerplate." Defendant's approach begs the question with respect to the validity of a closing agreement; defendant cannot achieve the desired end without the proper means. Defendant's approach also belies the statutory and regulatory framework regarding the proper format for a valid closing agreement, as well as the attendant case law. See Levin v. Commissioner, T.C. Memo 1990-226, 1990 W.L. 57569 (U.S. Tax Ct.), aff'd, 930 F.2d 909 (2d Cir. 1991) ("The statutory procedure provides the exclusive method by which a closing agreement may be accorded finality") (citing McIlhenny v. Commissioner, 39 F.2d 356 (3d Cir. 1930)); Hudock v. Commissioner, 65 T.C. 351, 362 (1975); Knapp-Monarch Co. v. Commissioner, 139 F.2d 863, 864 (8th Cir. 1944); Wasserstrom v. Commissioner, T.C. Memo 1986-417, 1986 WL 21645 at 6 (U.S. Tax Ct., Sept. 4, 1986) (citing Dorl v. Commissioner, 507 F.2d 406 (2d Cir. 1974) ("An agreement executed in any other manner [than prescribed by the IRS] is ineffective as a section 7121 closing agreement.")); Kennedy v. United States, 965 F.2d 413, 421 (7th Cir. 1993); Person v. Commissioner, T.C. Memo 1985-211, 1985 WL 14839 (U.S. Tax Ct., May 2, 1985); Hedrick v. Commissioner, 63 T.C. 395 n.5 (U.S. Tax Ct., Dec. 19, 1974).
Since the court finds that the parties have not entered into a binding closing agreement, it does not reach plaintiff's remaining arguments.
Based on the foregoing, defendant's motion is denied in its entirety. An order accompanies this opinion. No costs.
ORDER - March 8, 1994, Filed; March 10, 1994, Entered
THIS MATTER having come before the court on motion by defendant to dismiss the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, alternatively, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure; and the court having read and considered the written submissions of counsel pursuant to Rule 78 of the Federal Rules of Civil Procedure; and good cause appearing,
IT IS on this 7th day of March, 1994,
ORDERED that defendant's motion be and hereby is denied in its entirety.
CLARKSON S. FISHER
United States District Judge
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