Myron Barlow and Arlene Barlow - Page 44




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               We think petitioners’ contention has been essentially                   
          answered by the Court of Appeals for the Sixth Circuit, the                  
          circuit to which these cases are appealable, see sec.                        
          7482(b)(1)(A), in Johnston v. Commissioner, 429 F.2d 804 (6th                
          Cir. 1970), affg. 52 T.C. 792 (1969).  In that case, the taxpayer            
          filed a petition with this Court contesting the assessment,                  
          without the prior issuance of a notice of deficiency, of an                  
          addition to tax under section 6654(a) for failure to pay                     
          estimated tax.  We granted the Commissioner’s motion to dismiss              
          for lack of jurisdiction, holding that section 6659(b)17 did not             
          require the issuance of a notice of deficiency for the particular            
          addition involved.  In so holding, we stated:                                
               We are not aware of any case that holds that the                        
               assessment of a tax before the taxpayer is given his                    
               day in Court is a denial of due process.  To the                        
               contrary, see Phillips v. Commissioner, 283 U.S. 589                    
               (1931).  Prior to the establishment of the Board of Tax                 
               Appeals (now the Tax Court) prepayment of the tax was a                 
               prerequisite to the right to test in court all taxes                    
               determined to be due by the Commissioner of Internal                    
               Revenue. [Johnston v. Commissioner, 52 T.C. at 793.]                    
               In affirming our action, the Court of Appeals acknowledged              
          that “the payment of taxes as a precondition to sue for their                
          return places a burden on the taxpayer”.  Id. at 806.  However,              
          the Court of Appeals went on to hold that given the availability             
          of a refund action, such burden “does not so deprive him of an               



               17  Sec. 6659 has been renumbered several times.  In the                
          current Internal Revenue Code, it appears as sec. 6665.                      





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