- 16 - Although petitioner did not raise the installment agreement argument in his petition, petitioner may pursue the argument as long as his failure to provide respondent with notice of the argument did not prejudice respondent. See Pagel, Inc. v. Commissioner, 91 T.C. 200, 212 (1988), affd. 905 F.2d 1190 (8th Cir. 1990). The existence of prejudice depends on “the amount of surprise and the need for additional evidence on behalf of the party opposed to the new position.” Id. Upon examination of the record,16 we find no prejudice to respondent, and we consider the issue. B. Whether a Remand of the Case to Appeals Is Appropriate Taxpayers are entitled to only one section 6330 hearing for the taxable period for which the tax is unpaid. Sec. 6330(b)(2). After the hearing, the Appeals Office maintains jurisdiction over 16On the basis of evidence in the record, we find it unlikely that petitioner’s failure to raise the collection alternatives issue in the pleadings unduly surprised respondent or prevented respondent from submitting any necessary, additional evidence. In the stipulation of facts, respondent stipulated that consideration of an installment agreement “was deferred pending the resolution of the statute of limitations issue.” On petitioner’s Form 12153, Request for a Collection Due Process Hearing, submitted as an exhibit, he claimed to “[retain] the right to request collection arrangements other than collection by levy if any liability is determined to be valid.” Additionally, after the hearing, in the notice of determination, also submitted as an exhibit, Appeals Officer Mares discussed petitioner’s counsel’s refusal to consider an installment agreement at the hearing. Appeals Officer Mares noted that petitioner’s counsel would not discuss the installment agreement “because she [believed] the assessment was barred by statute” and concluded that “[petitioner] declined an offer to explore collection alternatives to the proposed collection action.”Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011