- 38 - 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 deficiencyPage: Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Next
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