- 9 -
owes the extra tax--only that the Commissioner can assess and
collect it, leaving him with the right to sue for a refund.
Likewise, from the Commissioner’s perspective, signing a Form 870
isn’t his agreement that no more extra tax might be owed; the
“General Information” section of Form 870 states: “[Your consent]
will not prevent us from later determining, if necessary, that
you owe additional tax * * *.”
But the Nicholses have another argument. They contend that,
even if the Form 870 would bar them from opening the front door
to Tax Court to challenge the deficiency assessed against them,
they can still sneak in the back door by challenging the
Commissioner’s decision to try to collect on the assessment
because they never got a notice of deficiency. And section
6330(c)(2)(B) gives their argument a superficial plausibility--
that section allows taxpayers to challenge their underlying tax
liability if they “did not receive any statutory notice of
deficiency for such tax liability or did not otherwise have an
opportunity to dispute such tax liability.”
The Nicholses, it is undisputed, did not receive a notice of
deficiency. But of course the reason they didn’t receive one is
that they voluntarily waived their right to do so when they
signed the Form 870. We have held that section 6330 “provides no
consolation to petitioners who themselves made the choice not to
receive * * * [a notice of deficiency].” Aguirre v.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011