Theodore C. and Denise M. Schwartz - Page 4

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          Because the total unpaid tax exceeds $50,000, but the tax for any           
          single year in issue is less than $50,000, we ordered the parties           
          to file responses to the question of whether this case could be             
          decided as a small tax case pursuant to section 7463.  Respondent           
          and petitioners both took the position that it was appropriate to           
          proceed pursuant to section 7463 because the unpaid tax for any             
          single year was less than $50,000.2  Nevertheless, because this             
          issue concerns the Court’s authority to proceed under section               
          7463 and is in the nature of a jurisdictional question,3 we will            



               2 Respondent’s response filed Jan. 16, 2007, states:                   
          “Respondent’s National Office has approved the position taken in            
          this Statement.”  Shortly after the trial, the Court became aware           
          of a motion that the Commissioner had filed in an unrelated case,           
          docket No. 17199-06S, where he took the position that a                     
          collection case brought pursuant to sec. 6330(d) could not                  
          proceed under the small tax case procedures of sec. 7463 because            
          the total unpaid tax for the years in issue exceeds $50,000 even            
          though the unpaid tax for each separate year was less than                  
          $50,000.  The Commissioner has recently withdrawn the motion in             
          that case.                                                                  
               3 We have previously referred to the dollar limits in sec.             
          7463 as “the jurisdictional maximum for a small tax case”.                  
          Kallich v. Commissioner, 89 T.C. 676, 681 (1987); Page v.                   
          Commissioner, 86 T.C. 1, 13 (1986).  While there is no question             
          that we have jurisdiction to decide whether the proposed sec.               
          6330 collection action is appropriate, there is a question                  
          whether we can proceed to decide this matter as a small tax case            
          under sec. 7463.  Sec. 7463(c), Limitation of Jurisdiction,                 
          prohibits decisions in excess of the prescribed amounts.  Sec.              
          7463(d), Discontinuance of Proceedings, provides for                        
          discontinuance of proceedings under sec. 7463 where the amount              
          placed in dispute “exceeds the applicable jurisdictional amount”.           
          Appellate court jurisdiction is also affected because a decision            
          in a case decided under the sec. 7463 procedures is final and may           
          not be reviewed by a Court of Appeals.  Sec. 7463(b).                       




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