James E. Anderson and Cheryl J. Latos - Page 15

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          opportunity for an Appeals conference, such refusal or failure,             
          considered alone, would not have rendered the second notice of              
          deficiency or the ensuing assessment invalid.  See Cupp v.                  
          Commissioner, 65 T.C. 68 (1975), affd. without published opinion            
          559 F.2d 1207 (3d Cir. 1977); see also Wisniewski v.                        
          Commissioner, T.C. Memo. 1989-60.  Accordingly, petitioners are             
          not entitled to question the merits of the underlying tax                   
          liability for their 1995 tax year.                                          
               With respect to the 1996 and 1997 tax liabilities,                     
          petitioners reported income tax liabilities, which respondent was           
          entitled to and did assess.  We surmise that respondent permitted           
          petitioners to question the underlying merits of those                      
          liabilities because they did not have that opportunity before the           
          proposed collection activity.  See, e.g., Horn v. Commissioner,             
          T.C. Memo. 2002-207.  When the validity of the underlying tax               
          liability is properly in issue, we review the matter on a de novo           
          basis. See Hoffman v. Commissioner, supra; Sego v. Commissioner,            
          supra.                                                                      
               Petitioners “self-assessed” the 1996 and 1997 tax                      
          liabilities by reporting such liabilities on their income tax               
          returns.  The liability arose from Mr. Anderson’s reported income           
          from his fishing activity.  The Appeals officer suggested that              
          petitioners file amended tax returns for 1996 and 1997 if they              
          wished to claim that they were not liable for tax.                          






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