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determination also concluded that petitioner was precluded from
challenging this portion of the underlying liability because of
the consideration by the Appeals Office of his Appeals request.
The difficulty with this conclusion is that the Appeals Office
had not taken any action with respect to petitioner's Appeals
request when the Notice of Intent to Levy was issued to him.
Section 6330(c)(2)(B) states with respect to the right of a
person, whose property is subject to levy, to challenge the
underlying tax liability in a section 6330 hearing as follows:
(B) Underlying liability.--The person may also
raise at the hearing challenges to the existence or
amount of the underlying tax liability for any tax
period if the person did not receive any statutory
notice of deficiency for such tax liability or did not
8(...continued)
loss arose from sales of capital assets and the extent of any
gains from such sales, thus triggering the $3,000 limit of sec.
1211(b). Nothing on the return or its accompanying schedules
indicated that petitioner had taken the position that he was
entitled to report his securities transactions under sec. 475(f),
as he apparently now claims in this proceeding.
Petitioner would have been entitled to have the foregoing
"math error" assessment abated, and the proposed increase in his
2000 tax liability considered instead under the deficiency
procedures, if he had so requested within 60 days after the "math
error" notice was sent to him on Sept. 3, 2001. See sec.
6213(b)(2)(A). However, petitioner failed to do so within the
allotted 60 days; his letter disputing the "math error"
assessment was not sent until Dec. 5, 2001.
Respondent does not contend that petitioner's right to
invoke deficiency procedures with respect to the asserted
liability pursuant to sec. 6213(b)(2)(A) constituted "an
opportunity to dispute" the liability within the meaning of sec.
6330(c)(2)(B). We note in this regard that the "math error"
notice sent to petitioner nowhere disclosed to him his right to
deficiency procedures, let alone that such right was contingent
upon petitioner's making the request within 60 days.
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