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MARVEL, J., dissenting: This Court continues its struggle
with sections 6320 and 6330. In this case the majority holds
that Mr. Giamelli’s estate (the estate) may not raise any issue
before this Court that Mr. Giamelli did not raise at his section
6320 administrative hearing (section 6320 hearing)1 before the
Internal Revenue Service (IRS) Appeals Office. Because the
majority opinion rejects both issues raised by the estate without
drawing a distinction between an issue that could have been
raised at the administrative hearing and was not and an issue
that arises because of a change in circumstances occurring after
the administrative hearing was held and the notice of
determination was issued, I respectfully dissent.
In this case, Mr. Giamelli and his wife had filed a joint
Federal income tax return for 2001 but did not pay the tax that
was due with the return. After assessing the tax reported on the
return and requesting payment, respondent issued to the Giamellis
a Notice of Federal Tax Lien Filing and Your Right to a Hearing
Under IRC 6320. Mr. Giamelli, through counsel, timely requested
an administrative hearing under section 6320.
The majority opinion states that Mr. Giamelli informed the
Appeals officer to whom his hearing request was assigned that he
wished to enter into an installment agreement and that the
Appeals officer and Mr. Giamelli discussed the installment
1A hearing requested under sec. 6320 is conducted in
accordance with sec. 6330(c), (d) (other than par. (2)(B)
thereof), and (e).
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