Nield and Linda Montgomery - Page 44

                                       - 44 -                                         
               notice of deficiency for such tax liability or did not                 
               otherwise have an opportunity to dispute such tax                      
               liability.                                                             
               Having determined as a first step that the term “underlying            
          tax liability” means assessed amounts, the majority proceeds as a           
          second step to find the plain meaning of section 6330(c)(2)(B)              
          without adequately considering whether the phrasing of that                 
          provision contradicts such meaning.  Thus, consider the meaning             
          of section 6330(c)(2)(B) with respect to the following                      
          hypothetical taxpayer if, as the majority would have it, the term           
          “underlying tax liability” means assessed amounts.  The taxpayer            
          files a return but fails to pay the $100 tax shown on that                  
          return, which tax is assessed by the Commissioner (the return               
          assessment).  Subsequently, the Commissioner determines that                
          additional tax of $50 is due and sends the taxpayer a notice of             
          deficiency in that amount, which the taxpayer receives and                  
          ignores, resulting in a subsequent assessment of $50 (the notice            
          assessment).  The taxpayer’s total (composite) liability is                 
          $150.8  If, at a section 6330 hearing, the taxpayer attempts to             
          challenge the Commissioner’s right to collect the $150 liability,           
          and if the taxpayer’s underlying tax liability equates to the               
          assessed amounts, then does not the plain language of section               
          6330(c)(2)(B) dictate that the taxpayer can challenge both the              

               8  For an example of a composite liability where the                   
          taxpayer did not ignore the notice of deficiency, see Fayeghi v.            
          Commissioner, supra.                                                        





Page:  Previous  34  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  Next

Last modified: May 25, 2011