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They also submitted amended tax returns for 1997-199, and original tax returns for the years 2000-2002.3 The settlement officer who held the CDP hearing told the Baltics that they couldn't challenge the amount or existence of their tax liability for 1999 because they had had a chance to challenge the liability when they received a notice of deficiency and hadn't done so. Summary judgment is proper here since the parties don't dispute the facts at all, but disagree only about the law: Did the settlement officer abuse her discretion by issuing the notice of determination without considering the Baltics' pending OIC-DATL or amended 1999 return? We've also held that the Commissioner didn't abuse his discretion in rejecting an OIC-DATL where the underlying tax liability was previously stipulated in a Tax Court decision, because a stipulated tax liability can't validly be considered a "doubtful liability" under the applicable regulation. She also explained to them that, even though she herself couldn't consider the OIC-DATL as part of the CDP hearing, an Appeals officer within another part of the IRS would consider it and a revenue officer in yet a third part of the IRS would examine the Baltics' amended 1999 return in what is called an "audit reconsideration." The settlement officer then ended the CDP hearing, and sent the Baltics a notice in which she determined that collection by levy would be postponed until the IRS both decided whether to accept the OIC-DATL and finished its "audit reconsideration," but that the lien would be sustained. Section 6330(c)(2)(B) allows a taxpayer to challenge the existence or amount of his underlying tax liability if he neither received a notice of deficiency nor otherwise had an opportunity to dispute it. (Section 7122(c)(1) was recently amended, Tax Increase Prevention and Reconciliation Act of 2005, Pub. The Baltics' very narrow challenge is not to the IRS's decision to collect by levy --any levy to collect taxes owed for any of the years covered by their OIC is postponed by sec. One remedy that the Commissioner has against a business that fails to pay these withheld taxes is to collect them from a "responsible person" within the company; i.e., someone who was required to pay over the tax. His reason for doing so is unclear --section 301.7122-1(h), Proced. Regs., says the Commissioner should treat such checks as deposits, not payments; implying the Baltics should ultimately get the money refunded if their offer is rejected. 6133(k)(1) generally blocks the IRS from collecting taxes by levy (though not by lien) while an OIC is pending. A section 6672 penalty is payable on notice and demand, without issuance of a notice of deficiency.

If it's not, then it should have been considered at the CDP hearing, because section 6330(c)(2)(A)(iii) lists OICs as a collection alternative that a taxpayer may raise at the hearing. We have, however, already come very close to holding that OIC-DATLs are a prohibited challenge to the underlying tax liability. 6331(k)(1) --but to the settlement officer's decision that she herself would not consider their OIC-DATL as a collection alternative during the CDP process.5 The Baltics were residents of Ohio when they filed their petition, though they chose Las Vegas as their place of trial. Section 6330 1 says that taxpayers like the Baltics can't challenge their "underlying tax liability." The main question in this case --which we've apparently never quite squarely answered --is whether their making an offer-in-compromise based on doubt as to liability (an OIC-DATL) is a challenge to the "underlying tax liability."Background In February 2003, the Commissioner sent the Baltics a notice of deficiency saying they owed over 0,000 in income tax and penalties for 1999. The Baltics don't dispute that they received the notice, and don't dispute that they never filed a petition in this Court to challenge it.

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