- 34 -
GOEKE, J., concurring in result: I agree with the result
reached by the majority and its interpretation of the term
“underlying tax liability”. I write separately to clarify the
significance of petitioners’ amended return.
Under section 6330(c)(2)(B), petitioners were permitted to
raise at the hearing challenges to the existence or amount of
their underlying tax liability. Petitioners raised a challenge
to the amount of their underlying liability and the parties
agreed that petitioners would be permitted to submit an amended
return reflecting their position. The Appeals officer abruptly
issued the notice of determination. Petitioners subsequently
submitted an amended return. I believe that if petitioners had
been given a reasonable opportunity to challenge the amount of
their underlying liability during the hearing process (e.g., by
filing an amended return) and they had failed to do so, then we
should not review the underlying tax liability because it was not
properly raised at the hearing, but in this case they were not
given the opportunity to challenge their underlying liability, so
the hearing was inadequate.
This situation is analogous to offers in compromise (OIC).
Before an OIC can be considered, the taxpayer must submit current
financial information. Moorhous v. Commissioner, T.C. Memo.
2003-183; see also Rodriguez v. Commissioner, T.C. Memo. 2003-153
(finding that the Appeals officer did not abuse his discretion in
Page: Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 NextLast modified: May 25, 2011