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was issued within 180 days after respondent determined not to
abate interest. Respondent contends that we lack jurisdiction to
consider petitioner's claim. We agree with respondent.
Petitioner's argument is apparently based on his assumption
that the stay of assessment that applies under deficiency
procedures applies in this case. Generally, respondent may not
assess or collect tax and additions to tax and penalties
pertaining to a deficiency from the time a notice of deficiency
is mailed until the time to file a petition expires (90 days or
150 days if applicable), or until the decision of the Tax Court
becomes final if a petition is filed.5 Sec. 6213(a). Petitioner
brought this action under section 6404(g), not under section
6213. Section 6404(g) does not bar assessment, unlike section
6213. Thus, we lack jurisdiction under section 6404 to decide
petitioner's claim that respondent made a wrongful levy.6
2. Refund Offset
Petitioner contends that he may offset his 1985 tax
liability with a refund of $903.41 from 1995. Respondent
contends that we lack jurisdiction to consider petitioner's
5 Exceptions to restrictions on assessment (not applicable
in this case) include assessments arising from mathematical
errors, tentative carry back or refund adjustments, and amounts
paid as a tax. Sec. 6213(b).
6 Effective 180 days after July 22, 1998, the Tax Court has
jurisdiction to review determinations under sec. 6330 relating to
proposed levies. RRA 1998 sec. 3401(b), 112 Stat. 747, adding
sec. 6330.
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Last modified: May 25, 2011