James D. Horn - Page 28




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          offers in support of his contention is the recital that tax                 
          return positions are treated as admissions unless overcome with             
          cogent evidence they are wrong.  See, e.g., Waring v.                       
          Commissioner, 412 F.2d 800, 801 (3d Cir. 1969), affg. per curiam            
          T.C. Memo. 1968-26; Lare v. Commissioner, 62 T.C. 739, 750                  
          (1974), affd. without published opinion 521 F.2d 1399 (3d Cir.              
          1975).                                                                      
               This is the first case in which the Commissioner and a                 
          taxpayer have asked us to address the taxpayer’s ability to                 
          challenge collection of the tax assessed on the basis of his own            



               10(...continued)                                                       
               (6)  Appeals’ interpretation of have [sic] an                          
               opportunity to dispute such tax liability is that the                  
               taxpayer must be ADVISED, in writing of the opportunity                
               to dispute whatever the issue is by going to Appeals,                  
               for example, in some letter, publication or similar                    
               correspondence.  We do not assume that taxpayers are                   
               aware of their legal rights unless they have been                      
               advised.                                                               
               a.  Having an opportunity to pay the tax and file a                    
               claim for refund, and not having done so, does not                     
               constitute an opportunity to dispute the liability.                    
               b.  Also, not having filed an amended return during the                
               applicable time period does not constitute an                          
               opportunity to dispute the liability.                                  
               c.  Having an opportunity to dispute the liability                     
               means an opportunity occurring before the claim period,                
               (in most cases, this means before assessment, but in                   
               all cases it means before payment).  This may be the                   
               chance to go to Tax Court, or otherwise having the                     
               chance to go to Appeals (whether deficiency or non-                    
               deficiency cases.)                                                     






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