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Respondent did not answer the petition but, instead, made
the motion. See Rule 36(a). In support of the motion,
respondent argues that no statutory notice of deficiency, as
authorized by section 6212 and required by section 6213(a) to
form the basis for a petition to this Court, has been sent to
petitioners with respect to 2002 (the taxable year in question),
nor has respondent made any other determination with respect to
2002 that would confer jurisdiction on the Court. Replying to
petitioner’s opposition to the motion, respondent points out
that, in their papers opposing the motion, petitioners concede
that no notice of deficiency or other determination was issued by
respondent. Respondent argues that, on those grounds alone, the
motion should be granted. Nevertheless, respondent addresses
petitioners’ assignments of error. He denies that petitioners
were entitled to a section 6330 hearing since the overpayment was
applied to other taxes by way of offset and not by way of levy.
The notice and hearing requirements of section 6330, he claims,
apply only to proposed levy actions, and not to administrative
offsets. Moreover, he claims that, since an offset is not a
levy, there was no violation of any prohibition under section
6331(k)(2) that no levy with respect to unpaid tax may be made
while an installment agreement for payment of such tax is in
effect.
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