Robert A. Wodarczyk - Page 13




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          Office hearing.  Judicial review of the administrative                      
          determination is available if the taxpayer petitions this Court             
          or the appropriate U.S. District Court.  Sec. 6330(d); see Davis            
          v. Commissioner, 115 T.C. 35, 37 (2000); Goza v. Commissioner,              
          114 T.C. 176, 179 (2000).                                                   
               Where the validity of the underlying tax liability is                  
          properly at issue, the Court will review the matter de novo.                
          Where, as here, the underlying liability is not at issue, the               
          Court will review the Commissioner’s administrative determination           
          for abuse of discretion.  Sego v. Commissioner, 114 T.C. 604, 610           
          (2000).5  The U.S. Court of Appeals for the Fifth Circuit equates           
          an abuse of discretion standard with “arbitrary and capricious”.            
          Matassarin v. Lynch, 174 F.3d 549, 563 (5th Cir. 1999).6                    
               In an Appeals Office hearing prior to levy, a taxpayer may             
          present any relevant issue relating to the unpaid tax or the                
          proposed levy, including spousal defenses, the appropriateness of           

               5    Since no notice of deficiency was ever issued to                  
          petitioner for 1993, petitioner could have, under sec.                      
          6330(c)(2)(B), challenged the underlying tax liability for that             
          year.  Petitioner did not do that but instead presented a                   
          collection alternative under sec. 6330(c)(2)(A)(iii).  Thus, the            
          underlying tax liability is not at issue.                                   
               6    But for the provisions of sec. 7463(b), the decision in           
          this case would be appealable to the U.S. Court of Appeals for              
          the Fifth Circuit.  See sec. 7482(b)(1)(A).  This Court generally           
          applies the law in a manner consistent with the holdings of the             
          Court of Appeals to which an appeal of its decision lies, see               
          Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985              
          (10th Cir. 1971), even in cases subject to sec. 7463(b).                    





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