- 12 - 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).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011