Howard and Everlina Washington - Page 25




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          V.  The Discharge in Bankruptcy Issue                                       
               Petitioners’ claim that the U.S. Bankruptcy Court for the              
          Southern District of New York (the Bankruptcy Court) discharged             
          them from their respective unpaid liabilities for 1994 and 1995             
          is not a challenge to the preassessment determination of the tax            
          but, rather, is in the nature of an affirmative defense that                
          petitioners could raise in any postassessment action to collect             
          the unpaid portion of the assessed tax from them.  See, e.g.,               
          First Natl. Bank v. Haymes, 268 N.Y.S.2d 820, 827 (City Civ. Ct.            
          1996), stating:  “[W]here the bankrupt is sued upon a debt[,] a             
          discharge in bankruptcy is a defense which must be affirmatively            
          pleaded by him.”  Such a defense is relevant to collection of the           
          unpaid portion of the assessed tax and, thus, is appropriately              
          raised under section 6330(c)(2)(A) (but not under section                   
          6330(c)(2)(B)).                                                             
          VI.  Standard of Review                                                     
               Where, upon appeal from a section 6330 determination, a                
          challenge to the existence or amount of the taxpayer’s underlying           
          tax liability (i.e., a challenge to the determination of the tax            
          on which the Commissioner based his assessment) is properly                 
          before us, the taxpayer is entitled to a hearing de novo and may            
          make a record, and we should decide that challenge in the same              
          manner as we would redetermine a deficiency pursuant to section             
          6214.  In most other instances where we are asked to review a               






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