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respondent argue that petitioners otherwise had an opportunity to
dispute the unpaid tax within the meaning of section
6330(c)(2)(B).6 Rather, respondent’s contention that
petitioners’ obligation to pay the unpaid tax is not properly at
issue is based on his position that, as used in section
6330(c)(2)(B), the term “underlying tax liability” is properly
interpreted to refer only to amounts asserted by the Internal
Revenue Service (IRS) in excess of the amount of tax reported by
the taxpayer on her return. In the context of the income tax,
that amount would generally correspond to the amount of any
deficiency assessed by the Commissioner and would exclude any
amount of self-assessed tax (such as the unpaid tax here in
issue). As previously discussed, the majority interprets the
term “underlying tax liability” in section 6330(c)(2)(B) to mean
“the amounts that the Commissioner assessed for a particular tax
5(...continued)
“deficiency” essentially means the amount by which a person’s tax
liability exceeds the tax shown on the person’s return. See sec.
6211(a).
6 Respondent’s regulations provide: “An opportunity to
dispute a liability includes a prior opportunity for a conference
with Appeals that was offered either before or after the
assessment of the liability.” Sec. 301.6330-1(e)(3), Q&A-E2,
Proced. & Admin. Regs. Without regard to sec. 6330(c)(2)(B), a
taxpayer’s subsequent disavowal of a reported and assessed, but
unpaid, income tax liability amounts to an informal claim for
abatement. See Fayeghi v. Commissioner, T.C. Memo. 1998-297,
affd. 211 F.3d 504 (9th Cir. 2000). Because such a claim has no
formal procedural significance, see sec. 6404(b), presumably it
is not subject to the Appeals process.
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