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proceeding. While we acknowledge that the language could have
been more precise as to this assumption, when considered in its
entirety, the notice of determination indicates that the Appeals
officer was willing to assume that petitioner’s 1989 and 1991 tax
liabilities were discharged in bankruptcy and instead focus
solely on whether the discharge prevents respondent from pursuing
collection by levy. We find nothing inappropriate about this
decision by the Appeals officer, especially in a case such as
this where more than 10 years have passed since the relevant
returns were due, and both parties claim to have destroyed most,
if not all, of the relevant documents because of this passage of
time.
As a consequence of our conclusion that the Appeals officer
assumed the aforementioned discharge, we need not ourselves also
address the question of whether petitioner received a discharge
in bankruptcy with respect to his 1989 and 1991 tax liabilities.
III. Collection by Levy
Petitioner contends that a New Jersey law exempts his
section 401(k) retirement account from levy. See N.J. Stat. Ann.
sec. 25:2-1(b) (West Supp. 2003). Petitioner contends that this
exemption applies here so as to prevent collection by levy.
Petitioner cites In re Yuhas, 104 F.3d 612 (3d Cir. 1997),
as support for his claim that his section 401(k) retirement
account is exempt from Federal tax lien and levy. In that case,
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