- 14 -
years. Thus, it appears that petitioner could have
disputed the merits of his underlying tax liability for
those years at the CDP hearing. See Poindexter v.
Commissioner, 122 T.C. 280, 284 (2004); Montgomery v.
Commissioner, 122 T.C. 1, 9 (2004). However, petitioner
did not raise his underlying tax liability for any of those
years as an issue either in his request for the CDP hearing
or in his petition for review in this Court. Therefore,
petitioner’s underlying tax liability is not at issue in
this case. See Poindexter v. Commissioner, supra;
Lunsford v. Commissioner, 117 T.C. at 185-187; Davis v.
Commissioner, 115 T.C. 35, 39 (2000). As to all of the
years in issue in this case, the determination is to be
reviewed for abuse of discretion.
We do not agree with respondent that the Court’s
review of the Appeals officer’s levy determination is
governed by the judicial review provisions of the
Administrative Procedure Act, such that, in the words of
respondent’s motion, “its review may not go beyond the
administrative record.” To the contrary, in Robinette v.
Commissioner, supra at 95, the Court held that we were not
limited by the Administrative Procedure Act when reviewing
a levy determination for abuse of discretion and “our
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