Richard Nichols and Lisa Nichols - Page 11

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          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.            





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