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Chairman of the Tax and IRS Oversight Sub-Committee, and the
Chairman of the House Ways and Means Committee, stating that he
would not file a petition with the Tax Court until it was
established that the Government had the legal authority to send
the notice of deficiency in the first place. We have held in
numerous cases that the approach taken by petitioner is without
merit. See, e.g., Nestor v. Commissioner, 118 T.C. 162, 165
(2002); Rewerts v. Commissioner, T.C. Memo. 2004-248; Israel v.
Commissioner, T.C. Memo. 2003-338; Bethea v. Commissioner, T.C.
Memo. 2003-278; Fink v. Commissioner, T.C. Memo. 2003-61; Koenig
v. Commissioner, T.C. Memo. 2003-40. By taking this approach,
petitioner closed the door on his ability to contest the
underlying tax liability. See sec. 6330(c)(2)(B).
Where the underlying tax liability is not at issue, we review
the Commissioner’s determination to proceed with collection for
abuse of discretion. Sego v. Commissioner, 114 T.C. 604, 610
(2000). An abuse of discretion may be defined as an action that,
taking into account all the facts and circumstances, is
unreasonable, arbitrary or capricious, clearly unlawful, or
lacking sound basis in law. See, e.g., Ewing v. Commissioner, 122
T.C. 32, 39-40 (2004); Swanson v. Commissioner, 121 T.C. 111, 119
(2003).
The May 11, 2004, telephone conference between petitioner and
respondent’s Appeals officer was agreed to by petitioner and
constituted an appropriate hearing for purposes of section
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