Nield and Linda Montgomery - Page 35

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          not considering OIC where all required returns had not been                 
          filed).  Without this information, the Appeals officer cannot               
          properly consider the OIC.  Likewise, a taxpayer desiring to                
          challenge the existence or amount of the underlying tax liability           
          who has not previously filed an amended return should generally             
          be required to file an amended return in conjunction with the               
          hearing if such amended return is requested by the Appeals                  
          officer in order to satisfy the requirement that the liability be           
          at issue at the hearing.                                                    
               Although petitioners’ amended return reflects that they are            
          due a refund of $519,087, I do not interpret the majority as                
          implying that we have the authority to order a refund if                    
          petitioners establish that they have overpaid their 2000 taxes.             
          Our jurisdiction under section 6330 is limited to deciding                  
          whether respondent can proceed with the proposed collection                 
          action.  Accordingly, we would need only decide whether                     
          petitioners’ 2000 tax liability is equal to or less than the                
          amount they previously paid for the year.                                   
               HAINES and WHERRY, JJ., agree with this concurring opinion.            














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