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written request to sell the stock”.9 It is undisputed, however,
that petitioners did make a written request on August 23, 2001,
in the fax from Mr. Mather to the Appeals officer. On the basis
of all the evidence, we have concluded that the fax constituted a
request to sell the stock, consistent with the manner in which
the Appeals officer treated it.10 Consequently, if we were to
9 This Court has held that in exercising judicial review
pursuant to sec. 6330(d), we review respondent’s determinations
de novo where the validity of the underlying tax liability is at
issue but otherwise review respondent’s determinations for abuse
of discretion. See, e.g., Sego v. Commissioner, 114 T.C. 604,
610 (2000). At least one court has held that in a sec. 6330
collection case, procedural challenges, as opposed to challenges
to the correctness of the administrative determination, should be
reviewed de novo rather than for abuse of discretion. Cox v.
United States, 345 F. Supp. 2d 1218, 1220 (W.D. Okla. 2004). The
instant case presents a mix of a sec. 6335(f) procedural
challenge and a correctness challenge as to underlying factual
matters. The standard of review is further complicated by the
fact that the final determination does not expressly address
petitioners’ request to sell the stock. Because we would
conclude that respondent erred in failing to comply with
petitioners’ request even under the more restrictive abuse of
discretion standard, we need not and do not decide whether a de
novo standard of review applies to the procedural challenge
presented by this case.
10 In a footnote to his legal memorandum in support of his
motion for reconsideration, respondent quibbles over whether the
fax represented an “express request by petitioners to sell the
stock”, postulating that it “can also be construed as a request
to release the levy on the stock or to release the stock back to
petitioners”. The administrative record clearly shows, however,
that the Appeals officer treated the fax as a request by
petitioners to sell the stock. In fact, her first documented
action after receiving the fax was to call Mr. Mather “re sale of
stock that had been levied”. Immediately thereafter, the Appeals
officer spoke to the revenue officer and other IRS personnel
about a possible sale of petitioners’ stock. The following week,
she made a note in her case activity records that she would
“continue to research/work with rep on possible sale of stock he
(continued...)
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