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concurring). Thus, it would follow that the language adopted by
the conference committee was meant to limit those taxpayers who
have previously litigated the underlying liability or declined
the opportunity to do so after receiving a notice of deficiency
or otherwise. Of course, if this were Congress’s intent,
petitioner would not be precluded from raising his liability here
because, while he has had the opportunity for an Appeals Office
hearing, he has not had a prior opportunity to litigate his
underlying tax liability.
This interpretation, however, is not without problems.
First, if Congress were concerned only with preventing taxpayers
from enjoying multiple opportunities to litigate their tax
liability, it certainly did not make this intent clear. That is,
if this were truly the limit of Congress’s intent, it could have
expressed this by stating in simple terms that a person may
challenge the existence or amount of the underlying liability if
the person had not previously had the opportunity to seek
judicial review of the underlying liability.
To interpret section 6330(c)(2)(B) to mean every taxpayer
gets one precollection opportunity to litigate his underlying tax
liability would serve to overturn the tax collection scheme as it
existed prior to the enactment of the Restructuring and Reform
Act where many tax liabilities were not subject to any prepayment
judicial review. For instance, with respect to section 6651,
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Last modified: November 10, 2007