Mitchell F. Skrizowski - Page 14

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          Rule 41(b).  Accordingly, petitioner’s underlying liability for             
          1989 is properly before the Court, and we review that issue de              
          novo.8  See Sego v. Commissioner, supra; Goza v. Commissioner,              
          supra.  We shall review the remainder of respondent’s                       
          determination for 1989 for an abuse of discretion.  Sego v.                 
          Commissioner, supra.                                                        
          III. Underlying Tax Liability                                               
               The evidence establishes that petitioner did not receive $5            
          million in business income in 1989.                                         
          IV. Abuse of Discretion                                                     
               A.   Evidentiary Issue                                                 
               Respondent argues that we should be limited to the                     
          administrative record in deciding whether the settlement                    
          officer abused his discretion.  At trial, respondent objected to            
          the introduction of evidence offered by petitioner to prove an              
          abuse of discretion where that evidence was not provided to the             
          settlement officer.  The Court noted respondent’s objection but             
          allowed testimony to proceed.  On brief, however, respondent                
          stated that the Court should consider the testimony of the                  



               8  We note that at the time he filed the petition and as of            
          the date of trial, we had not ruled whether in sec. 6330 cases              
          taxpayers could challenge the existence or amount of a tax                  
          liability reported on their original return (as is the case                 
          herein).  In Montgomery v. Commissioner, 122 T.C. 1 (2004), we              
          held that in sec. 6330 cases taxpayers can dispute tax                      
          liabilities reported on their original return.                              





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