Joseph Giamelli - Page 31




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               The advantage of the ruling in Magana v. Commissioner, 118             
          T.C. 488 (2002), is that it gives us the latitude to deal with              
          unusual situations as they arise rather than follow a wooden rule           
          that may produce undesirable results.                                       
               Lastly, the statutory language of section 6330(d)(2)(B)                
          refers to a “change in circumstances” and makes it clear that,              
          certainly in the context of a levy case, a change in a taxpayer’s           
          circumstances may affect an Appeals Office determination and may            
          justify a result different from that reached in the initial                 
          Appeals Office determination.                                               
               The facts before us in this case involve a significant                 
          change in circumstances (i.e., a taxpayer has died and has been             
          replaced as the party in interest by the decedent’s estate, which           
          did not exist at the time of the initial Appeals Office hearing             
          and which therefore could not have been present and could not               
          have raised any issue at the hearing).                                      
               The majority’s holding that we have no authority or                    
          jurisdiction even to consider whether the taxpayer’s death might            
          be covered by the exception preserved in Magana v. Commissioner,            
          supra at 494, for “unusual illness or hardship, or other special            
          circumstance” handcuffs this Court from considering and reviewing           
          a change in a taxpayer’s circumstance, even though the change of            
          circumstance has occurred after the Appeals Office hearing is               
          final and while the case is pending before us.                              







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