Brian and Tina Nicklaus - Page 7

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          B.   Whether This Court Has Jurisdiction in This Case                       
               Petitioners contend that this Court lacks jurisdiction in              
          this case because (1) the underlying tax liability at issue is              
          for employment or excise tax, and (2) respondent may not file a             
          substitute for return for individual income tax.                            
               1.   Whether the Underlying Liability Is for Employment or             
                    Excise Tax                                                        
               Petitioner contends that records that he obtained from                 
          respondent under the Freedom of Information Act, 5 U.S.C. sec.              
          552 (2000), show that employment or excise taxes, but not income            
          taxes, are at issue in this case, and that respondent’s records             
          show that petitioners were employers.  We disagree.                         
               On each of the Forms 4340 for the years in issue, respondent           
          certified that respondent assessed individual income tax.  On the           
          Final Notice - Notice of Intent to Levy & Your Notice Of a Right            
          To A Hearing, respondent identified Form 1040, U.S. Individual              
          Income Tax Return, as the form for the underlying tax which                 
          respondent seeks to collect.  Petitioners wrote “1040” in the               
          space for “Tax Form Number(s)” on their requests for a hearing              
          under section 6330.  The notice of determination states that it             
          relates to income tax and the form number is Form 1040.  We                 
          conclude that respondent seeks to collect Federal individual                
          income tax from petitioners for 1993-94 and from petitioner for             

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