- 10 -
Commissioner, 117 T.C. 324, 327 (2001); see also Deutsch v.
Commissioner, T.C. Memo. 2006-27. And that’s just the choice the
Nicholses made.
The Nicholses’ claim must also fail for a second reason.
Before the Commissioner tried collecting the disputed 1994
liability via a lien under section 6320, he had sent them a CDP
notice saying that he intended to collect via a levy under
section 6330. Even if the Nicholses hadn’t signed the Form 870,
failing to request a CDP hearing after getting a notice of intent
to levy would bar them from contesting their tax liability. The
regulation states:
Where the taxpayer previously received a CDP
Notice under section 6330 with respect to the
same tax and tax period and did not request a
CDP hearing with respect to that earlier CDP
Notice, the taxpayer already had an
opportunity to dispute the existence or
amount of the underlying tax liability.
Sec. 301.6320-1(e)(3), A-E7, Proced. & Admin. Regs; see also Bell
v. Commissioner, 126 T.C. 356, 358 (2006); Mays v. Commissioner,
T.C. Memo. 2006-197.
The Nicholses finally argue that the Commissioner forfeited
the right to invoke the above regulation--section 301.6320-
1(e)(3), A-E7, Proced. & Admin. Regs.--when he actually
considered the NOLs during their later CDP hearing. See sec.
301.6320-1(f)(2), A-F5, Proced. & Admin. Regs. (allowing Tax
Court review of any issue raised in the taxpayer’s CDP hearing).
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