David J. Edwards - Page 38




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          admonitions that the argument was without merit as a matter of              
          law, that the notice of deficiency should be invalidated because            
          respondent failed to send a preliminary 30-day letter to                    
          petitioner, and failed to offer other administrative hearings,              
          before issuing the notice of deficiency.  Petitioner bases his              
          argument on Delpit v. Commissioner, 18 F.3d 768 (9th Cir. 1994).            
               The issue in dispute in Delpit had nothing to do with the              
          validity of a notice of deficiency.  The issue in Delpit was                
          whether an appeal from a decision of the Tax Court constitutes              
          the “commencement or continuation * * * of a judicial,                      
          administrative, or other action or proceeding against the debtor”           
          id. at 770, within the meaning the 11 U.S.C. sec. 362(a)(1), the            
          automatic stay in bankruptcy.  In dicta, the Court of Appeals in            
          Delpit described the usual procedure in tax cases:                          
               Under the income tax assessment procedure, a taxpayer                  
               is barred from petitioning the Tax Court until he has                  
               first participated in a number of administrative                       
               proceedings that are initiated "against" him.  These                   
               proceedings include an audit, a meeting with a revenue                 
               agent and a supervisor, a 30-day letter ("Preliminary                  
               Notice"), formal proceedings before the IRS Appeals                    
               Division, and a 90-day letter ("Notice of Deficiency").                
               These proceedings may continue with the taxpayer's                     
               request to the Tax Court to remove or reduce the                       
               deficiency assessment and, next, an appeal by one party                
               or the other to the Court of Appeals.  [Id.]                           
               Petitioner asserts that the Court of Appeals’ general                  
          description of ordinary tax procedure, in dicta, in Delpit,                 
          constitutes authority for invalidating the notice of deficiency             







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