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MARVEL, J., concurring: I agree with the majority that
respondent’s motion for summary judgment must be denied in this
case. There are several reasons for doing so, including the
reasons set forth in the majority opinion. I believe, however,
that the facts of this case raise a serious factual issue as to
whether the taxpayers received the hearing mandated by section
6330, and on this ground alone, I would deny respondent’s motion.
The majority opinion states that, on April 18, 2002,
petitioners submitted a request for an administrative hearing.
In the letter accompanying the request, petitioners’
representative advised the Internal Revenue Service that
petitioners intended to file an amended income tax return to
“more appropriately report the exercise of the incentive and
nonqualified stock options” that gave rise to petitioners’ unpaid
tax liability for 2000. Petitioners’ representative also
challenged the appropriateness of the proposed levy, indicated
that the levy would cause irreparable harm to petititoners, and
stated that there were reasonable collection alternatives.
Appeals Officer Johnson had a conversation with petitioners’
representative on July 22, 2002, in which he agreed that
petitioners would be permitted to submit the amended return, but
he did not set any deadline for doing so. On September 26, 2002,
without any further notice to petitioners and apparently without
holding the required hearing, the Appeals Office issued to
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