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WHERRY, J., concurring: The majority opinion does not
expressly overrule Magana v. Commission, 118 T.C. 488 (2002), a
choice of action with which I agree. The instant case and Magana
raise different issues. This case is a question of jurisdiction
to consider a new issue (underlying tax liability, which was not
raised at the Appeals Office level) under section 6330(c)(2)(B).
Magana was a question of whether to consider a new matter
(hardship, which was not raised at the Appeals Office level) in
an abuse of discretion case under section 6330(d)(1). There is
no discretion, much less an abuse of discretion, in deciding
whether we have jurisdiction over a section 6330(c)(2)(B) matter.
Either we have jurisdiction to consider the issue, or we do not.
Given this difference, and the potential issue of an Appeals
Office hearing record’s accuracy, I believe there are at least
two circumstances where the rule in Magana (potentially
permitting the consideration of arguments, issues, or other
matters, which the record indicates were not brought to the
Appeals Office’s attention before the determination letter was
sent) may continue to apply.
First, in my view, the “record” in a section 6320 and/or
section 6330 case is not sacrosanct. Initially, it is prepared
by respondent as a part of the stipulation of facts, or on
occasion as an exhibit to the answer, or a motion for summary
judgment, which document is then filed with the Court and then
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