Alfred J. Martin - Page 16

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               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.”                            





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