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Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990); Abrams v.
Interco, Inc., 719 F.2d 23, 28 (2d Cir. 1983) (stating that it is
not inconsistent with the abuse of discretion standard to decline
to honor a purported exercise of discretion that is infected by
an error of law); Swanson v. Commissioner, 121 T.C. 111, 119
(2003).
II. Arguments of the Parties
Respondent argues that summary judgment is appropriate
because the bankruptcy files and the administrative files
concerning the collection due process hearing (the hearing files)
are not in dispute and establish the material facts of the case,
so that a decision may be rendered as a matter of law.
Respondent claims that petitioners are precluded from challenging
the underlying liabilities because they had a prior opportunity
to dispute those liabilities and that, given petitioners’ failure
to present collection alternatives or the offer to Appeals,
Appeals did not abuse its discretion in deciding that the
proposed levy should be sustained.
Petitioners argue that summary judgment is not appropriate
because, among other things, there are material issues of fact in
this case, viz, whether petitioners received the notices in time
to file petitions with the Tax Court and whether the bankruptcy
case presented an adequate opportunity to dispute the underlying
liabilities. Petitioners concede that collection alternatives
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