Joseph Giamelli - Page 40




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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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