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regarding material facts and that respondent is entitled to
summary disposition as a matter of law on the question of whether
the Appeals Office abused its discretion in upholding
respondent’s collection action.
The majority opinion identifies two arguments raised by the
estate’s attorney for the first time after Mr. Giamelli’s death.
The first argument is that “Mr. Giamelli overstated his income
tax liability [for 2001] in an effort to conceal fraudulent
business dealings, and that consequently the estate is only a
partial successor in interest to Mr. Giamelli.” Majority op. p.
9. The second argument is that the estate “is a separate person
entitled to its own collection review proceeding.” Majority op.
p. 16. Both arguments focus on an estate’s standing to raise
issues in a section 6320 proceeding. However, the first argument
addresses an issue with respect to Mr. Giamelli’s underlying tax
liability that, at least in part, could have been raised by Mr.
Giamelli at the section 6320 hearing but was not. The second
argument addresses an issue that could not have been raised at
the section 6320 hearing because Mr. Giamelli was still alive and
there was no estate in existence to raise it.
The majority opinion treats both arguments as an untimely
attempt on the part of the estate to raise an issue regarding Mr.
Giamelli’s underlying tax liability for 2001 that Mr. Giamelli
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