- 11 - This argument hearkens to the liberal rules of pleading that treat issues actually tried as if they had been raised in the pleadings. See Rule 41(b)(1); Fed. R. Civ. P. 15(b). And the Nicholses might even be able to tease such an argument out of the regulations themselves. Consider the regulation as it stood when they had their hearing: In seeking Tax Court or district court review of Appeals’ Notice of Determination, the taxpayer can only request that the court consider an issue that was raised in the taxpayer’s CDP hearing. Sec. 301.6320-1(f)(2), A-F5, Proced. & Admin. Regs. (as amended in 2002) (emphasis added). And compare it to the recent revision: In seeking Tax Court review of a Notice of Determination, the taxpayer can only ask the court to consider an issue, including a challenge to the underlying tax liability, that was properly raised in the taxpayer’s CDP hearing. Sec. 301.6320-1(f)(2), A-F3, Proced. & Admin. Regs. (effective Nov. 16, 2006) (emphasis added). The problem with this reasoning is that the revised regulation states existing law; it doesn’t change it. We had already held before this revision that the Code itself limits the power of the Commissioner (and on appeal, us) to reconsider liability issues. De novo review such as the Nicholses are requesting is appropriate only “[w]here the validity of the tax liability was properly at issue in the hearing * * *.” H. Conf.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011