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resolve the dispute in front of us on the basis of section
301.6330-1(e), Proced. & Admin. Regs., if at all possible.
I continue with my dissent because the ambiguity that
afflicts the statute also afflicts the regulation, and respondent
may say “Oops!” only because the regulation does not say what he
wants it to say, and the Secretary may try to amend it, in which
case the majority’s analysis becomes relevant.
III. Section 6330
A. Introduction
The majority adequately describes the general operation of
section 6330. Majority op. pp. 7-8. Putting aside section
301.6330-1(e), Proced. & Admin. Regs., the question presented is
whether respondent’s Appeals Office could, pursuant to section
6330(c)(2)(B), refuse to allow petitioners to challenge their
obligation to pay the amount of tax that they had reported but
not paid (the unpaid tax).4 It is clear (and respondent does not
suggest otherwise) that petitioners did not receive a statutory
notice of deficiency with respect to the unpaid tax.5 Nor does
4 Generally, when a return of tax is made and an amount of
tax is shown on the return, the person making the return shall,
without assessment or notice and demand, pay such tax at the time
and place the return is filed. Sec. 6151(a).
5 As used in sec. 6330(c)(2)(B), the term “statutory notice
of deficiency” refers to the means by which, in the case of
certain taxes (including the income tax), the IRS notifies a
person that it has determined a deficiency in that person’s tax.
See sec. 6212. In the context of those taxes, the term
(continued...)
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