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by pointing to the language of section 6331(i)(3)(B)(i). Section
6331(i) provides that no levy may be made during the pendency of
proceedings for the refund of a divisible tax (e.g., any
employment tax). In pertinent part, section 6331(i)(3)(B)
provides: “Certain levies. This subsection shall not apply to-
–(i) any levy to carry out an offset under section 6402”.
By reference to the language of section 6331(i)(3)(B), a
similar exception is incorporated into section 6331(k), which
provides that no levy may be made while an offer in compromise is
pending or an installment agreement is pending or in effect.
Sec. 6331(k)(3)(A).
Petitioners sum up their argument as follows:
So there we have it. To carry out an offset[,]
you must levy first. That is how the Commissioner
acquires a taxpayer’s property, by levy. If a levy
upon an overpayment were not required, and[,] as the
Respondent contends, an[] offset has independent
authority to operate without the predicate act of a
levy, the statute would * * * [read differently].
Petitioners acknowledge that they received no notice of
determination, but they ask us to overrule our holdings in
Offiler v. Commissioner, 114 T.C. 492 (2000), and Lunsford v.
Commissioner, 117 T.C. 159 (2001), that a notice of determination
is a prerequisite to our section 6330 jurisdiction. They argue
that, in a case where the Secretary has levied on property of the
taxpayer without first providing the taxpayer the written notice
of the taxpayer’s right to a prelevy hearing required by section
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