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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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