- 43 -
period” (sometimes, simply, assessed amounts). Thus, for the
majority, in the context of a tax that is subject to the
deficiency procedures (such as the income tax), the term
“underlying tax liability” means the sum of (1) any self-assessed
tax plus (2) any deficiency assessment. Id. pp. 11-12.7
I agree with the majority that the term “underlying tax
liability” must be interpreted “in context”, Id. p. 11, and only
add, as stated by the Court of Appeals for the Fifth Circuit:
However, even apparently plain words, divorced from the
context in which they arise and in which their creators
intended them to function, may not accurately convey
the meaning the creators intended to impart. It is
only, therefore, within a context that a word, any
word, can communicate an idea.
Leach v. FDIC, 860 F.2d 1266, 1270 (5th Cir. 1988).
B. Language of Section 6330(c)(2)(B)
Section 6330(c)(2)(B) provides:
(B) Underlying liability. The person may also
raise at the hearing challenges to the existence or
amount of the underlying tax liability for any tax
period if the person did not receive any statutory
7 On p. 12, the majority states: “In the present case,
petitioners’ underlying tax liability consists of the amount that
petitioners reported due on their tax return along with statutory
interest and penalties.” Since petitioners paid a portion of the
amount they reported due on their return, it would seem that, for
the majority, the term “underlying tax liability” includes both
paid and unpaid assessments of tax. The majority does not say
whether, under sec. 6330(d)(1), we have the authority to order a
refund. I do not see how we do, since our jurisdiction under
that section is to review the Commissioner’s determination to
proceed with collection of a given amount. To the extent that
Chief Judge Wells, in his concurring opinion, suggests to the
contrary, I disagree.
Page: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 NextLast modified: May 25, 2011