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Based on the record in this case, and with due regard to
Rule 121(d), see Koenig v. Commissioner, T.C. Memo. 2003-40, we
conclude that petitioners received the August 5, 2002 notice of
deficiency.
In addition to the aforementioned five factors relied on by
respondent, we observe that at the hearing on respondent’s
motion, counsel for respondent produced a complete copy of the
August 5, 2002 notice of deficiency and represented that it had
been obtained from petitioners during discussions by the parties
preceding the hearing on respondent’s motion. Moreover, in an
Order issued prior to the hearing, the Court directed petitioners
to state whether or not they received the notice of deficiency.
In the Order, the Court went on to advise petitioners that in the
absence of their denial, the Court would proceed on the basis
that they actually received the notice of deficiency within a few
days after its date of mailing. Petitioners never denied
receipt; rather, they continued to challenge the existence or
amount of the underlying liability.
In view of the foregoing, we hold that petitioners are
barred, as a matter of law, from challenging the existence or
amount of the underlying tax liability for 2000 in the present
collection review proceeding. Sec. 6330(c)(2)(B).
Finally, petitioners have failed to offer an alternative
means of collection (such as an installment payment agreement or
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