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be processed by the Service at any time and is in that
respect materially different from a challenge to the
underlying tax liability
* * * the burden of proof for purpose of challeng-
ing the penalty in the CDP hearing is not merely abuse
of discretion. The CDP officer should have developed
the penalty waiver request.
* * * the penalty may be waived in a situation
where a taxpayer fails to properly report and pay the
alternative minimum tax if the taxpayer relied on
professionals, as was the case here. Montgomery, 127
T.C. No. 3 (2006).
* * * The tax and interest assessments are not at
issue in this case. [Reproduced literally.]
We conclude that there are no genuine issues of material
fact regarding the questions raised in respondent’s motion. In
that motion and the declaration and the exhibits attached
thereto, respondent has represented facts relating to the resolu-
tion of respondent’s motion, none of which petitioners dispute,
including the facts surrounding the mailing and the receipt by
each petitioner of a final notice of intent to levy with respect
to each of petitioners’ taxable years 2000 and 2001. Petitioners
do not dispute that respondent mailed such notices, that peti-
tioners received such notices, and that petitioners failed to
request an Appeals Office hearing in response to such notices.
Petitioners had an opportunity to challenge the respective
underlying tax liabilities for their taxable years 2000 and 2001
when each petitioner received a notice of intent to levy with
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