                        T.C. Memo. 1999-197



                      UNITED STATES TAX COURT



               HENRY F. K. KERSTING, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No.   7448-96.               Filed June 17, 1999.



     Leonard Thomas Bradt, for petitioner.

     Henry E. O'Neill, for respondent.



                        MEMORANDUM OPINION


     LARO, Judge:   Mr. Kersting petitioned the Court on April 16,

1996, to redetermine respondent's determination of deficiencies

in petitioner's Federal income tax for 1982 through 1988.

Respondent determined petitioner had unreported income in

connection with his tax shelter promotion activities.    The
                                      - 2 -


resulting deficiencies in income tax and additions to tax are as

follows:

                                    Additions to Tax
Year       Deficiency   Sec. 6651(a)(1) Sec. 6653(a)1 Sec. 6654(a)

1982         $454,752      $113,688           $22,738      $44,274
1983          855,081       213,770            42,754       52,325
1984          960,807       240,202            48,040       60,407
1985        1,045,458       261,365            52,273       59,909
1986          787,428       196,857            39,371       38,097
1987          101,574        25,394             5,079        5,489
1988           28,064         7,016             1,403        1,794
       1
      Respondent also determined that the time sensitive
addition to tax under section 6653(a)(2) also applied for 1982
through 1988, and that the time sensitive addition to tax under
section 6653(a)(1)(B) applied to 1986 and 1987.

       We decide the following issues:

       1.     Whether the presumption of correctness attaches to

respondent's deficiency determination.           We hold it does.

       2.     Whether petitioner's gross income includes receipts from

tax shelter promotion activities as determined by respondent in

the following amounts:

                    Year                Amount

                    1982                $916,997
                    1983               1,720,483
                    1984               1,932,671
                    1985               2,101,968
                    1986               1,585,676
                    1987                 266,681
                    1988                  83,045

We hold it does.
                               - 3 -


     3.   Whether section 162 allows petitioner to claim

deductions for 1982 through 1988 for expenses incurred by

petitioner's alter ego corporations.     We hold it does not.

     4.   Whether petitioner is liable for additions to tax for

failure to file under section 6651(a)(1) for 1982 through 1988.

We hold he is.

     5.   Whether petitioner is liable for additions to tax for

negligence under section 6653(a)(1) and (2) for 1982 through

1985, section 6653(a)(1)(A) and (B) for 1986 and 1987, and

section 6653(a) for 1988.   We hold he is.

     6.   Whether petitioner is liable for additions to his 1982

through 1988 taxes under section 6654(a) for failure to pay

estimated taxes.   We hold he is.

     Unless otherwise stated, section references are to the

Internal Revenue Code in effect for the years in issue.     Rule

references are to the Tax Court Rules of Practice and Procedure.

Dollar amounts are rounded to the nearest dollar.

                            Background

     Some of the facts have been stipulated and are so found.

The stipulated facts and exhibits submitted therewith are

incorporated herein by this reference.     Petitioner resided in

Honolulu, Hawaii, when he petitioned the Court.
                                 - 4 -


     Petitioner was a promoter and manager of investment plans

designed to create interest deductions for plan participants.1

Petitioner has not filed a tax return since 1975.    In January

1981, special agents of the Internal Revenue Service (IRS),

Criminal Investigation Division, executed a warrant to search

petitioner's corporate offices.    Among the documents seized were

lists of participants in the tax shelter programs.    Audits of

these participants resulted in the filing in this Court of

approximately 1,800 petitions.    In 1989, 14 dockets involving

eight petitioners with similar adjustments were selected as test

cases, consolidated for purposes of trial, briefing, and opinion,

and set for trial under the name Dixon v. Commissioner.     The

issue in Dixon was whether the interest deductions generated by

the Kersting investment plans were allowable.

     While the Dixon taxpayers were awaiting trial, the IRS on

May 15, 1987, petitioned the U. S. District Court for the

District of Hawaii (District Court) for leave to serve a John Doe

summons on petitioner.   In its petition, the IRS alleged that

petitioner was promoting tax shelters of questionable validity




     1
       See Dixon v. Commissioner, T.C. Memo. 1991-614, vacated
and remanded sub nom. DuFresne v. Commissioner, 26 F.3d 105 (9th
Cir. 1994), reinstated sub. nom. Dixon v. Commissioner, T.C.
Memo. 1999-101, for a detailed analysis of petitioner's
investment operations.
                               - 5 -


and that it sought the summoned documents in order to identify

taxpayers participating in petitioner's investment plans.

     The District Court enforced the John Doe summons over the

objections of petitioner and third-party intervenors.   The

District Court's enforcement order was affirmed by the Court of

Appeals for the Ninth Circuit, but the appellate court remanded

the case to the District Court to determine whether petitioner

had already complied with the summons and thus rendered the

appeal moot.   See United States v. Kersting, 891 F.2d 1407, 1411-

1413 (9th Cir. 1989).

     Following service of the John Doe summons, the IRS

determined that petitioner was engaged in promoting abusive tax

shelters from 1982 through 1988.   Based on his determination that

the 33 corporations involved in the investment plans were alter

egos of petitioner, the Commissioner attributed income from the

corporations to petitioner as follows: $916,997, $1,720,483,

$1,932,671, $2,101,968, $1,585,676, $266,681, and $83,045 for the

years 1982 through 1988, respectively.   The Commissioner also

assessed penalties in excess of $3.8 million against petitioner

pursuant to sections 6700 and 6701.    Petitioner paid $22,398, a

portion of the sections 6700 and 6701 penalties, and brought suit

in the District Court for refund of the amounts paid (Kersting I,

Civ. No. 90-00304 HMF).   The United States filed a counterclaim

in the amount of $2,329,700 to reduce the section 6701 penalties
                                 - 6 -


to judgment, and it brought a separate action to reduce the

section 6700 penalties to judgment (Kersting II, Civ. No. 92-

00593 HMF).   The 33 corporations involved in the investment plans

brought a wrongful levy action pursuant to section 7426 seeking

various remedies (Pacific Paradise, Civ. No. 91-00747 HMF).     The

three cases were consolidated and are hereinafter referred to as

Kersting (Consolidated Cases).

     The Dixon taxpayers tried their cases before this Court in

January 1989.   In Dixon v. Commissioner, T.C. Memo. 1991-614, the

Court sustained virtually all of the Commissioner's

determinations in each of the test cases.   However, the Court's

decisions in Dixon were vacated and remanded sub nom. DuFresne v.

Commissioner, 26 F.3d 105 (9th Cir. 1994), with directions to

conduct an evidentiary hearing to consider the effect of the

Commissioner's admission, subsequent to the trial and entry of

decisions, that there had been secret settlements with two of the

Dixon test case taxpayers.   Following an extensive evidentiary

hearing and in a lengthy opinion, the Tax Court reinstated the

decisions in Dixon determining deficiencies in the income of the

taxpayers.    See Dixon v. Commissioner, T.C. Memo. 1999-101.

     Kersting (Consolidated Cases) was tried in the District

Court before Judge Harold M. Fong in a nonjury trial commencing

May 10, 1994, and concluding June 17, 1994.   During the course of

the trial, the District Court considered and denied a number of
                               - 7 -


motions filed by petitioner.   See Kersting v. United States, 865

F. Supp. 669 (D. Haw. 1994).   On September 2, 1994, the District

Court entered findings of facts and conclusions of law.   Adopting

the Commissioner's gross income calculations, the District Court

found, among other things, that petitioner was liable for

penalties under section 6700 for 1982 through 1988 in the

aggregate amount of $1,373,700.2   In calculating the amounts of

the penalties, the District Court found that the 33 corporations

were alter egos of petitioner and that the gross income of the

corporations was therefore attributable to petitioner.

Specifically, the District Court found that:

     The government has demonstrated that Kersting derived
     as gross income through his corporations $3,478,036.25
     from his abusive programs from September 4, 1982,
     through July 18, 1984, and $5,129,483.70 thereafter.
     Applying the appropriate percentages * * * Kersting
     therefore is liable in the amount of $1,373,700.41
     pursuant to section 6700.

     Though he has the burden of proof in this area,
     Kersting presented no credible evidence of what he
     considered was the gross income derived or to be
     derived from his programs. In fact, Kersting's own
     testimony strongly suggested that he generated much
     more income from his programs than was included by the
     IRS in its calculations and that the Section 6700
     penalty is substantially understated.




     2
       For violations occurring before July 19, 1984, sec. 6700
imposes a penalty of 10 percent of the gross income derived or to
be derived by the taxpayer from an abusive tax shelter. For
violations occurring after July 19, 1984, sec. 6700 imposes a
penalty of 20 percent of the gross income so derived.
                               - 8 -


Judgment for the Government was entered on September 30, 1994,

and an appeal by Mr. Kersting (and others) of the judgment is

pending before the Court of Appeals for the Ninth Circuit.

     On September 14, 1995, respondent issued a notice of

deficiency to petitioner that determined deficiencies and

additions to tax based on gross income attributable to petitioner

through the 33 corporations.

                             Discussion

Presumption of Correctness

     Petitioner moves to shift the burden of proof to respondent.

The parties agree respondent based his determination of

unreported income on the District Court's findings in Kersting

(Consolidated Cases).   Petitioner contends respondent's sole

reliance on those findings makes the determination arbitrary and

erroneous so as to shift the burden of proof to respondent.3    We

disagree.

     Respondent's determination is generally presumed correct,

and the taxpayer has the burden of proof.    See Rule 142(a); Welch

v. Helvering, 290 U.S. 111 (1933).     However, the presumption of

correctness may not attach in certain unreported income cases if

respondent does not present some predicate evidence supporting


     3
      Petitioner does not assert that respondent failed to
"determine" the amount of deficiency pertaining to the years at
issue as required by sec. 6212(a). Compare Scar v. Commissioner,
814 F.2d 1363 (9th Cir. 1987), revg. 81 T.C. 855 (1983).
                                - 9 -


the determination.    See United States v. Janis, 428 U.S. 433,

441-442 (1976); Weimerskirch v. Commissioner, 596 F.2d 358, 360

(9th Cir. 1979), revg. 67 T.C. 672 (1977).    The rationale for

this exception is based on the recognized difficulty the taxpayer

bears in proving the nonreceipt of income.    See Elkins v. United

States, 364 U.S. 206 (1960); Flores v. United States, 551 F.2d

1169, 1175 (9th Cir. 1977).    When the determination is considered

arbitrary and erroneous, the presumption of correctness is

destroyed.    See United States v. Janis, supra at 442;

Weimerskirch v. Commissioner, supra.

     Petitioner's contention that respondent's determination is

arbitrary and erroneous is without merit.    Petitioner stipulated

to the District Court's opinion in Kersting (Consolidated Cases)

and stipulated to nearly the entire record in Kersting

(Consolidated Cases), including voluminous testimony and

exhibits.    After an extensive examination of the voluminous

record, the District Court released a detailed 107-page opinion,

and respondent's determination is based squarely thereon.

     During trial of this case, petitioner neither presented

witnesses nor made any meaningful attempt to rebut the

overwhelming evidence supporting respondent's determination,

evidence to which petitioner stipulates.    Respondent has amply

demonstrated the requisite "predicate evidence" supporting his

determination.    Petitioner nonsensically argues the determination
                               - 10 -


is arbitrary because there was evidence of higher gross income in

Kersting (Consolidated Cases), yet the District Court adopted the

more conservative figures.    He further argues that irregularities

exist in respondent's method of income reconstruction in Kersting

(Consolidated Cases).    These arguments fail to refute the fact

that respondent has connected petitioner to the income-producing

activity and has amply demonstrated the determination of

unreported income is grounded in fact.    Because the determination

in this case stands securely on a foundation of concrete

evidence, we hold that the presumption of correctness attaches to

respondent's determination and the burden of proof rests with

petitioner.

Gross Income

     Respondent argues petitioner is collaterally estopped from

relitigating the issue of whether he had gross income during 1982

through 1988 in the amounts determined by the District Court in

Kersting (Consolidated Cases).    Petitioner agrees the elements of

collateral estoppel are satisfied but argues the judgment in

Kersting (Consolidated Cases) has no preclusive collateral

estoppel effect because the judgment was obtained by fraud

allegedly perpetrated by the Government on the District Court.

We disagree.4


     4
         The Court previously denied respondent's motion for
                                                     (continued...)
                              - 11 -


     "Collateral estoppel and the related doctrine of res

judicata have the dual purpose of protecting litigants from the

burden of relitigating an identical issue and of promoting

judicial economy by preventing unnecessary or redundant

litigation."   Meier v. Commissioner, 91 T.C. 273, 282 (1988).

Issue preclusion, or collateral estoppel, is defined in 1

Restatement, Judgments 2d, sec. 27 (1982), as follows: "When an

issue of fact or law is actually litigated and determined by a

valid and final judgment, and the determination is essential to

the judgment, the determination is conclusive in a subsequent

action between the parties, whether on the same or a different

claim."

     In Montana v. United States, 440 U.S. 147, 155 (1979), the

Supreme Court established a three-prong test for applying

collateral estoppel:   First, the issues presented in the

subsequent litigation are in substance the same as those issues

presented in the first case; second, the controlling facts or

legal principles have not changed significantly since the first

judgment; and third, other special circumstances do not warrant

an exception to the normal rules of preclusion.   In Peck v.



     4
      (...continued)
partial summary judgment on the issue of whether petitioner is
collaterally estopped from relitigating his gross income for 1982
through 1988. We now reconsider that issue with the benefit of
the complete record.
                                - 12 -


Commissioner, 90 T.C. 162, 166 (1988), affd. 904 F.2d 525 (9th

Cir. 1990), we stated that the "three-pronged rubric provided by

the Supreme Court in the Montana case embodies a number of

detailed tests developed by the courts to test the

appropriateness of collateral estoppel in essentially factual

contexts."    Building on the Supreme Court's analysis in Montana,

we identified five conditions that must be satisfied for

collateral estoppel to apply:    First, the issue in the second

suit must be identical in all respects with the one decided in

the first suit; second, there must be a final judgment rendered

by a court of competent jurisdiction; third, collateral estoppel

may only be invoked against parties and their privities to the

prior judgment; fourth, the parties must have actually litigated

the issue and the resolution of these issues must have been

essential to the prior decision; and fifth, the controlling facts

and applicable legal rules must remain unchanged from those in

the prior litigation.   See Peck v. Commissioner, supra at 166-

167; see also Commissioner v. Sunnen, 333 U.S. 591, 599-600

(1948); Gammill v. Commissioner, 62 T.C. 607, 613-615 (1974).

     Petitioner concedes Peck's five-prong analysis is

satisfied.5   However, citing Montana's "special circumstances"


     5
       It is settled law that the District Court's judgment is
considered to be final for purposes of the application of
collateral estoppel. See Robi v. Five Platters, Inc., 838 F.2d
                                                   (continued...)
                               - 13 -


exception, petitioner objects to the application of collateral

estoppel on the ground that the judgment in the prior case was

obtained by perpetrating fraud upon the court.     On brief,

petitioner identifies two instances of what he claims was fraud

perpetrated on the District Court.      First, petitioner claims that

during Kersting (Consolidated Cases), the Government used grand

jury material obtained in violation of Rule 6(e) of the Federal

Rules of Criminal Procedure and deceived the court about the

origin of that material.    Second, petitioner claims that the

Government impermissibly used a John Doe summons to identify

petitioner's tax liability and subsequently deceived the court

about this purpose.

     Petitioner's allegations of fraud upon the court concern

allegedly false statements or representations made by the

Commissioner's agents or counsel for the Government either prior

to or during the trial of Kersting (Consolidated Cases).

Petitioner's claims of fraud on the court have previously been

considered and rejected by the District Court.     See Kersting v.

United States, 865 F. Supp. 669, 671-676 (D. Haw. 1994)(wherein

the court rejected petitioner's claim the Government improperly

used grand jury materials); United States v. Kersting, 891 F.2d

1407, 1411-1413 (9th Cir. 1989)(wherein the District Court


     5
      (...continued)
318, 327 (9th Cir. 1988).
                                 - 14 -


rejected petitioner's claim the Government improperly used a John

Doe Summons).   We are satisfied that no special circumstances

exist which preclude the application of collateral estoppel.

Because the requirements for application of collateral estoppel

have been satisfied, petitioner is collaterally estopped from

denying that he had gross income during 1982 through 1988 in the

amounts determined by the District Court in Kersting

(Consolidated Cases).      Accordingly, we sustain respondent's

determination of unreported income for all years.

Business Expenses

     In various pretrial pleadings, petitioner argued generally

he was entitled to offsetting deductions for bad debts and

business expenditures of the nominee corporations that were not

taken into account by respondent when computing the unreported

income.   Petitioner's interest in this issue waned by the time of

trial in this case as he presented no witnesses and neither

listed this as an issue nor presented any legal argument on this
                   6
point on brief.


     6
       Liberally construing his brief, we glean the total of
petitioner's "argument" on this point from the following six
requested findings of fact:

                  *    *     *    *    *    *    *

     17. The corporations employed and paid attorneys to
     represent them and/or Henry Kersting.

                                                       (continued...)
                               - 15 -


     Petitioner invites the Court implicitly to wade through the

numerous checks in the record, calculator in hand, to come up

with the purported amounts of alleged business expenses.    We

decline this invitation.   See Stringer v. Commissioner, 84 T.C.

693 (1985), affd. without published opinion 789 F.2d 917 (4th

Cir. 1986)(wherein the Court refused to sift through a voluminous

and unintelligible record without the aid of a brief).

Deductions are a matter of legislative grace, and taxpayers bear

the burden of proving they are entitled to claimed deductions.

See Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1934);


     6
      (...continued)
     18. The corporations paid the legal fees of attorneys
     who represented some of the test-case petitioners in
     Dixon v. Commissioner.

               *    *      *   *    *    *    *

     20. The corporations paid rent on office space during
     the years in question.

     21. The corporations paid for telephone service during
     the years in question.

               *    *      *   *    *    *    *

     29. In determining the income derived or to be derived
     by the corporations, the Commissioner did not take into
     account any deductions that the corporations would have
     had for ordinary business expenses.

     30. The Commissioner was required to take into account
     those business deductions which the Commissioner had
     evidence of when determining the alleged deficiency of
     Kersting.

Petitioner's Post-Trial Brief, pp.4-5 (citations omitted)
                              - 16 -


INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992).      Section

162 generally allows a deduction for all the ordinary and

necessary expenses paid or incurred in carrying on any trade or

business.   In order for petitioner to meet his burden of proof

under section 162(a), he must prove the item claimed as a

deductible business expense: (1) Was paid or incurred during the

taxable year; (2) was for carrying on his trade or business; (3)

was an expense; (4) was a necessary expense; and (5) was an

ordinary expense.   See Commissioner v. Lincoln Savs. & Loan

Association., 403 U.S. 345, 352 (1971); Welch v. Helvering,

supra.   The determination of whether an expenditure satisfies the

requirements of section 162 is a question of fact.   Commissioner

v. Heininger, 320 U.S. 467, 475 (1943).   On this record,

petitioner has failed to prove he is entitled to any business

deductions under section 162, and we so hold.7

     Additions to Tax

     Section 6651(a)(1) reads in pertinent part:

     In case of failure * * * to file any return * * * on
     the date prescribed therefor * * *, unless it is shown
     that such failure is due to reasonable cause and not
     due to wilful neglect, there shall be added to the
     amount required to be shown as tax on such return 5
     percent of the amount of such tax if the failure is for


     7
       The findings in Kersting (Consolidated Cases) that none of
the nominee corporations kept adequate books and records, and
that petitioner used the nominee corporations to pay his personal
living expenses render petitioner's claim to legitimate business
expenses particularly suspect.
                              - 17 -


     not more than 1 month, with an additional 5 percent for
     each additional month or fraction thereof during which
     such failure continues, not exceeding 25 percent in the
     aggregate. Sec. 6651(a)(1).

     To escape the addition to tax for filing late returns,

petitioner has the burden of proving (1) that the failure to file

did not result from wilful neglect, and (2) that the failure was

due to reasonable cause.   See United States v. Boyle, 469 U.S.

241, 245 (1985).   Reasonable cause requires taxpayers to

demonstrate that they exercised "ordinary business care and

prudence" but nevertheless were "unable to file the return within

the prescribed time."   Sec. 301.6651-1(c)(1), Proced. and Admin.

Regs.

     For all relevant years, petitioner failed to file returns.

The record in this case is void of any evidence of the reason for

this failure.   Thus, the record is void of evidence that the

failure was for reasonable cause.   We sustain respondent's

determination of additions to tax under section 6651(a)(1) for

all years.

     Respondent determined additions to tax for negligence for

1982 through 1988.   Respondent determined petitioner's

underpayment of income tax in each year was due to negligence or

intentional disregard of rules or regulations.   For 1982 through

1985, section 6653(a)(1) imposes an addition to tax equal to 5
                              - 18 -


percent of the underpayment if any part of the underpayment is

attributable to negligence.   Section 6653(a)(2) also imposes

an addition to tax equal to 50 percent of the interest payable on

the portion of the underpayment attributable to negligence.

     With respect to returns that have due dates after December

31, 1986 (e.g., petitioner's 1986 and 1987 tax returns), section

1503(a) of the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat.

2085, 2742-2743, replaced former section 6653(a)(1) and (2) with

section 6653(a)(1)(A) and (B).   Section 6653(a)(1)(A)

and (B) is similar to former section 6653(a)(1) and (2).   Section

6653(a)(1)(A) imposes an addition to tax equal to 5 percent of

the underpayment if any part of the underpayment is attributable

to negligence.   Section 6653(a)(1)(B) imposes an addition to tax

equal to 50 percent of the interest payable on the portion of the

underpayment attributable to negligence.

     With respect to returns that have due dates after December

31, 1988 (e.g., petitioner's 1988 tax return), section

1015(b)(2)(A) of the Technical and Miscellaneous Revenue Act of

1988 (TAMRA), Pub. L. 100-647, 102 Stat. 3342, 3569, replaced

former section 6653(a)(1)(A) and (B) with section 6653(a).

Section 6653(a) was similar to former section 6653(a)(1)(A).

Section 6653(a) imposes an addition to tax equal to 5 percent of

the portion of the underpayment attributable to negligence.

Section 6653(a)(1)(B), however, has no counterpart
                                - 19 -


following the enactment of TAMRA.

     For purposes of all of these provisions, negligence connotes

a lack of due care or a failure to do what a reasonable and

ordinarily prudent person would do under the circumstances.

See Neely v. Commissioner, 85 T.C. 934, 947 (1985); Korshin v.

Commissioner, T.C. Memo. 1995-46.    Petitioner bears the burden of

proving respondent's determination of negligence is erroneous.

See Rule 142(a); Bixby v. Commissioner, 58 T.C. 757, 791-792

(1972); see also     Stovall v. Commissioner, 762 F.2d 891, 895

(11th Cir. 1985), affg. T.C. Memo. 1983-450; Korshin v.

Commissioner, supra.     Petitioner has failed to do so.   Petitioner

presented no evidence to overcome the determination of

negligence.   To the contrary, the record establishes that

petitioner failed to exercise due care and failed to do what a

reasonable and ordinarily prudent person would have done under

the circumstances.    Petitioner neglected to file returns for any

of the 7 years in issue and has not filed a return since 1975.

Petitioner presented no evidence of reasonable cause for his

failure to file returns.    His breach of his statutory duty to

file timely Federal income tax returns for the years in issue is

evidence of negligence.    See Condor Intl., Inc. v. Commissioner,

98 T.C. 203, 225 (1992), affd. in part, revd.in part 78 F.3d 1355

(9th Cir. 1996); Emmons v. Commissioner, 92 T.C. 342, 349 (1989),

affd. 898 F.2d 50 (5th Cir. 1990); see also Korshin v.
                               - 20 -


Commissioner, supra.    We sustain respondent's determination of

additions to tax for negligence for all of the years in issue.

     Respondent determined an addition to tax against petitioner

under section 6654(a) for failure to make timely estimated tax

payments.    This addition to tax generally is mandatory and cannot

be waived due to reasonable cause.      See Recklitis v.

Commissioner, 91 T.C. 874, 913 (1988); Grosshandler v.

Commissioner, 75 T.C. 1, 21 (1980);      Estate of Ruben v.

Commissioner, 33 T.C. 1071, 1072 (1960); sec. 1.6654-1(a), Income

Tax Regs.    However, no addition to tax is imposed under section

6654(a) if one of the exceptions set forth in section 6654(e) is

satisfied.   Petitioner presented no evidence that an exception

applies and failed to address this issue on brief.     We sustain

respondent's determination of the addition to tax under section

6654 for all years in issue.

     We have considered all arguments made by petitioner, and, to

the extent not addressed above, find them to be without merit.

To reflect the foregoing,


                                            An appropriate order

                                      will be issued and decision

                                      will be entered for respondent
