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notice of deficiency24), respondent takes the position on brief
that we should undertake a de novo determination of petitioner's
entitlement to the claimed deduction for legal fees pursuant to
section 6330(c)(2)(B) and that any such determination will
generally be binding on the parties in any subsequent litigation
under the doctrine of collateral estoppel. Accordingly,
respondent represents, respondent will "make any necessary
adjustments" to the liability to conform to our decision.
We reject respondent's contention that we should undertake
de novo review of petitioner's entitlement to the miscellaneous
deductions claimed. The assessment of the 1999 liability made
pursuant to the math error notice, which the levy at issue in
this proceeding seeks to collect, is simply invalid insofar as it
results from the disallowance of petitioner's miscellaneous
deductions claimed on the 1999 return. That portion of the
assessment violated section 6213(a), which generally prohibits
the assessment of a deficiency without affording the taxpayer the
opportunity to petition for redetermination of the deficiency in
24 The record does not disclose whether an assessment was
made after the Freijes failed to file a petition with respect to
the notice of deficiency for 1999. The Form 4340 covering 1999
that is in the record was generated before the issuance of the
notice of deficiency. However, respondent's counsel represents
on brief that petitioner has a liability for 1999 that is based
on the notice of deficiency, as distinguished from the liability
based on the math error notice.
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