Peter P. Baltic and Karen R. Baltic - Page 6

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          officer abuse her discretion by issuing the notice of                       
          determination without considering the Baltics’ pending OIC-DATL             
          or amended 1999 return?                                                     
               Section 6330(c)(2)(B) allows a taxpayer to challenge the               
          existence or amount of his underlying tax liability if he neither           
          received a notice of deficiency nor otherwise had an opportunity            
          to dispute it.  The Baltics’ first line of attack is that they              
          should have been allowed to challenge their underlying liability            
          because section 6330(c)(2)(B)--though it allows challenges to               
          “the underlying tax liability for any tax period if the person              
          did not receive any statutory notice of deficiency”--doesn’t say            
          that it allows such challenges “only if the person did not                  
          receive any statutory notice of deficiency.”                                
               This parsing has no support in any caselaw, as the Baltics’            
          counsel admitted at oral argument.  And we won’t be creating any            
          here:  Congress used section 6330(c)--and only section 6330(c)--            
          to describe how a CDP hearing would work.  We find no authority             
          elsewhere in the Code to read that section’s command that the IRS           
          allow challenges to liability in some situations to mean that the           
          IRS must allow challenges to liability in all situations.                   
               The Baltics’ next sally looks more effective.  They claim              
          that making an OIC-DATL is not a challenge to their underlying              
          liability.  If it’s not, then it should have been considered at             
          the CDP hearing, because section 6330(c)(2)(A)(iii) lists OICs as           

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