-8-
underlying tax liability at issue if they did not “otherwise have
an opportunity to dispute such tax liability.” Id. The mere
fact that Appeals in petitioners’ section 6330 hearing considered
a claim as to the existence or amount of their underlying tax
liability does not necessarily mean that this Court may do
likewise. See Behling v. Commissioner, 118 T.C. 572 (2002).
Section 301.6330-1(e)(3), Q&A-E11, Proced. & Admin. Regs.,
provides the following illustrative question and answer:
Q-E11. If an Appeals officer considers the merits of a
taxpayer’s liability in a [collection due process (CDP)]
hearing when the taxpayer had previously received a
statutory notice of deficiency or otherwise had an
opportunity to dispute the liability prior to the issuance
of a notice of intention to levy, will the Appeals officer’s
determination regarding those liability issues be considered
part of the Notice of Determination?
A-E11. No. An Appeals officer may consider the
existence and amount of the underlying tax liability as a
part of the CDP hearing only if the taxpayer did not receive
a statutory notice of deficiency for the tax liability in
question or otherwise have a prior opportunity to dispute
the tax liability. * * * In the Appeals officer’s sole
discretion, however, the Appeals officer may consider the
existence or amount of the underlying tax liability, or such
other precluded issues, at the same time as the CDP hearing.
Any determination, however, made by the Appeals officer with
respect to such a precluded issue shall not be treated as
part of the Notice of Determination issued by the Appeals
officer and will not be subject to any judicial review.
* * * Even if a decision concerning such precluded issues
is referred to in the Notice of Determination, it is not
reviewable by a district court or the Tax Court because the
precluded issue is not properly part of the CDP hearing.
This Court recently held that when the IRS submits a proof
of claim for an unpaid Federal tax liability in a taxpayer’s
bankruptcy action, the taxpayer had the opportunity to dispute
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Last modified: May 25, 2011