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Commissioner for the taxable period. From a “plain meaning”
standpoint, such a reading of the statute would seem to be no
more preferable than respondent’s interpretation. Indeed, the
benefit of respondent’s interpretation (i.e., that the term
“underlying tax liability” in section 6330(c)(2)(B) refers only
to that portion of the underlying tax liability that the taxpayer
failed to report) is that it does not in most cases require
mental gymnastics to square such term with the remaining language
of the section.11
Based on the foregoing, I am satisfied that the term
“underlying tax liability”, as used in section 6330(c)(2)(B), is
susceptible to more than one reasonable interpretation.12 We may
therefore look beyond the language of the provision in our
endeavor to discern Congress’s purpose.
11 Of course, if it turns out that respondent’s
interpretation is actually that the term equates to “the tax
liability specified on the CDP Notice” (which is the term used in
sec. 301.6330-1(e)(1), (3), Proced. & Admin. Regs.), then such
interpretation presents similar ambiguities to those discussed in
the text.
12 In Washington v. Commissioner, 120 T.C. 114, 127 (2003)
(Halpern, J., concurring), without benefit of a consideration of
the legislative history discussed below, I concluded that the
term “underlying tax liability”, as used in sec. 6330(c)(2)(B),
means the tax on which the Commissioner based his assessment
(whether shown on the return or determined by the Commissioner).
I have since changed my mind.
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