James M. Robinette - Page 14

                                       - 14 -                                         
          of review that the Court is to apply in reviewing the                       
          Commissioner’s administrative determinations, we have stated that           
          where the validity of the underlying tax liability is properly at           
          issue, the Court will review the matter de novo.  Where the                 
          validity of the underlying tax liability is not properly at                 
          issue, however, the Court will review the Commissioner’s                    
          administrative determination for abuse of discretion.  Sego v.              
          Commissioner, supra at 610; Goza v. Commissioner, supra at 181.             
               Generally, under section 6330(c)(2)(B), issues that are                
          reviewed de novo include those such as a redetermination of the             
          tax on which the Commissioner based the assessment, provided that           
          the taxpayer did not have an opportunity to seek such a                     
          redetermination before assessment.  See, e.g., Landry v.                    
          Commissioner, 116 T.C. 60, 62 (2001) (“Because the validity of              
          the underlying tax liability, i.e., the amount unpaid after                 
          application of credits to which petitioner is entitled, is                  
          properly at issue, we review respondent’s determination de                  
          novo.”).  Whether the Commissioner’s assessment was made within             
          the limitation period also constitutes a challenge to the                   
          underlying tax liability.  Hoffman v. Commissioner, 119 T.C. 140,           
          145 (2002).                                                                 
               Under an abuse of discretion standard, “we do not interfere            
          unless the Commissioner’s determination is arbitrary, capricious,           
          clearly unlawful, or without sound basis in fact or law.”  Ewing            






Page:  Previous  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Next

Last modified: May 25, 2011