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review under section 6330(d)(1)(A)2 and involves the propriety of
respondent’s decision to proceed with collection of income tax
petitioner owes for the year 1993. That determination was
preceded by respondent’s issuance of a notice of intent to levy
and of petitioner’s right to a hearing in connection with an
assessed balance of income tax for 1993 in the amount of
$8,750.68, including statutory additions to tax. At the time the
petition was filed, petitioner’s legal residence was in Texas.
No testimonial evidence was adduced at the hearing.
Respondent contends that there is no genuine issue of material
fact and that the notice of determination should be sustained as
a matter of law.
Before proceeding with the merits of respondent’s motion and
the objection thereto, one prominent aspect of the case must
first be addressed. The petition was filed pursuant to
respondent’s issuance of a Notice of Determination Concerning
2 Petitioner, through counsel, filed a response to
respondent’s motion for summary judgment, not only objecting to
respondent’s motion, but affirmatively alleging: “The Petitioner
moves for summary determination that Respondent’s denial of his
allowable transportation cost was arbitrary, capricious and
without reference to administrative rules or law.” Petitioner’s
response was not filed as a motion for summary judgment because
it was not cast in the proper form. At the hearing, the parties
agreed that the case could be considered as cross-motions for
summary judgment. On the basis of these representations, we
conclude that there are no genuine issues of material fact, and
the sole question before the Court is whether, as a matter of
law, respondent’s motion should be granted.
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