- 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.
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