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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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