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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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Last modified: May 25, 2011