Nield and Linda Montgomery - Page 40

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          $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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