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return assessment and the notice assessment ($150) (i.e., because
the taxpayer did not receive a notice of deficiency “for” the
composite liability of $150)? Yet the majority would reach the
opposite conclusion, i.e., the hypothetical taxpayer could
challenge neither assessment, on the basis that the hypothetical
taxpayer “was afforded a prior opportunity to challenge such [the
composite] liability under the deficiency procedures.” Majority
op. p. 12. It is not clear to me how, under the deficiency
procedures, a taxpayer can challenge a return assessment that she
has not paid. See, e.g., O’Connor v. Commissioner, T.C. Memo.
1992-410 (Tax Court cannot enter a decision determining an
overpayment of assessed tax where the assessed tax has not been
paid; section 6404(b) forestalls forced abatement of any assessed
income tax, and “we know of no basis upon which we could hold
that petitioner is entitled to credits for any amounts assessed
but not paid”).
Alternatively, the majority could stick with its
interpretation of the term “underlying tax liability” as assessed
amounts and interpret the term “if” in section 6330(c)(2)(B) to
mean “to the extent”.9 That, however, would be an abandonment of
9 Viz, “The person may also raise at the hearing challenges
to the existence or amount of the underlying tax liability for
any tax period to the extent [as opposed to “if”] the person did
not receive any statutory notice of deficiency for such tax
liability or did not otherwise have an opportunity to dispute
such tax liability.”
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