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hearing under section 6330 or in any other previous
administrative or judicial proceeding in which the
person seeking to raise the issue meaningfully
participated. In the Appeals officer’s sole
discretion, however, the Appeals officer may consider
the existence or amount of the underlying tax
liability, or such other precluded issues, at the same
time as the CDP hearing. Any determination, however,
made by the Appeals officer with respect to such a
precluded issue shall not be treated as part of the
Notice of Determination issued by the Appeals officer
and will not be subject to any judicial review.
Because any decisions made by the Appeals officer with
respect to such precluded issues are not properly a
part of the CDP hearing, such decisions are not
required to appear in the Notice of Determination
issued following the hearing. Even if a decision
concerning such precluded issues is referred to in the
Notice of Determination, it is not reviewable by a
district court or the Tax Court because the precluded
issue is not properly part of the CDP hearing.
The regulations under section 6330 are interpretative
regulations. They must be upheld “unless unreasonable and
plainly inconsistent with the revenue statutes”. Commissioner v.
South Tex. Lumber Co., 333 U.S. 496, 501 (1948).
Applying the above-referenced standard to section 301.6320-
1(e)(3), Q&A-E11, Proced. & Admin. Regs., we hold that the
regulation is not unreasonable or plainly inconsistent with
section 6330.4 To the contrary, the regulation is consistent
4 Although the regulation provides guidance to taxpayers
that accurately describes the procedures the Internal Revenue
Service may follow, it is for this Court rather than the
Commissioner to decide the scope of our jurisdiction with respect
to applicable statutes enacted by Congress. See sec. 7442.
Therefore, we interpret the regulation’s references to “judicial
review” as signifying that the Commissioner does not intend, when
he considers a taxpayer’s underlying tax liability in a sec. 6330
hearing involving facts similar to those herein, to waive the
(continued...)
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Last modified: May 25, 2011