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Where the validity of the tax liability is not properly
part of the appeal, the taxpayer may challenge the
determination of the appeals officer for abuse of
discretion. * * *
H. Conf. Rept. 105-599, at 266 (1998), 1998-3 C.B. 747, 1020;
Sego v. Commissioner, supra at 609-610; Goza v. Commissioner,
supra at 181. I see no reason to depart from our established
case law.
The majority opinion does not explicitly state what standard
of review it applies. After concluding that we have jurisdiction
to determine whether the bankruptcy court discharged petitioners
from their unpaid tax liabilities, the majority opinion analyzes
the discharge order of the bankruptcy court, the bankruptcy code,
and existing precedent and concludes that the bankruptcy court
did not discharge petitioners from their unpaid tax liabilities.
Majority op. pp. 12-15. This analysis appears to be a review of
respondent’s determination on a de novo basis. If we are not
reviewing the existence or amount of the underlying tax liability
a de novo review would be inappropriate.1 Sego v. Commissioner,
supra at 610; Goza v. Commissioner, supra at 181-182.
The resolution of this case may not depend on what standard
of review we apply; even so, we should apply the correct standard
1 It is my opinion, however, that we should be applying a
de novo standard of review in this case because I believe
petitioners are challenging the existence or amount of the
underlying tax liability.
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