- 40 - $222,315.34. Majority op. p. 3. The dispute here is over whether petitioners could challenge respondent’s right to collect that debt (or at least the tax portion of it) at the section 6330 hearing they subsequently requested. The regulations under section 6330(c)(2)(B) cited above appear to be dispositive of that issue in petitioners’ favor. Surprisingly, however, neither party mentioned those provisions in their papers or oral argument with respect to respondent’s motion for summary judgment, and the majority treats the provisions almost as an afterthought, proceeding to consider whether the term “underlying tax liability” means something quite different than the meaning given the term in the regulations. If respondent’s position in this case is that the term “underlying tax liability” means liabilities in excess of self-assessed liabilities, then that position is directly contradicted by the meaning fixed for that term in the regulations; i.e., “the tax liability specified on the CDP Notice”. The majority has not even asked respondent to explain that contradiction. To me, the best course would be to ask respondent to explain the contradiction and, perhaps, say: “Oops!”3 As a matter of judicial economy, we should attempt to 3 Recently, by Chief Counsel Notice (CC-2002-043), reprinted in Tax Notes Today, 2002 TNT 206-13, attorneys working in the Office of Chief Counsel, Internal Revenue Service, were reminded that the office does not take positions in litigation that are inconsistent with positions that the Commissioner has taken in published guidance, including regulations.Page: Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Next
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