Juanita and Emmanuel Kendricks - Page 11

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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                
          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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