- 46 -
its “plain language” claim.
Finally, the majority might decide that the meaning of the
term “underlying tax liability” is not fixed; i.e., it does not
always mean all assessed amounts. Thus, e.g., in the case of a
composite liability, the underlying tax liability might be
exclusive of the deficiency if the deficiency was the subject of
a notice assessment (or the taxpayer otherwise had an opportunity
to dispute the deficiency10) and inclusive of the deficiency in
all other instances. Under that argument, in the example used
above, the underlying tax liability would be $100, since the
deficiency of $50 was the subject of a notice assessment. If,
instead, the taxpayer had not received the notice of deficiency
and did not otherwise have an opportunity to dispute the
deficiency, then the underlying tax liability would be $150. The
result under that alternative approach is similar to the result
reached under respondent’s interpretation in that (at least in
some circumstances) the term “underlying tax liability” means
something other than the total assessments made by the
10 A taxpayer would have “otherwise had an opportunity to
dispute” (and would therefore be precluded from challenging at a
sec. 6330 hearing) such amount without having received a notice
of deficiency if, for example, following the Commissioner’s
examination of her income tax return and determination of a
deficiency in tax, the taxpayer had executed a waiver of
restrictions on assessment and collection, thus making it
unnecessary for the Commissioner to mail to her a notice of
deficiency. See Aguirre v. Commissioner, 117 T.C. 324, 327
(2001).
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