Nield and Linda Montgomery - Page 31

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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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