dissenting: I agree with Judge Foley’s dissent; however, I write separately to emphasize certain points.
The majority’s opinion in this case is at best dicta and at worst an advisory opinion. Rather than finding as a fact whether petitioners received a hearing before an Appeals officer, the majority avoids this important issue. If petitioners received a hearing, then the majority’s discussion of Meyer v. Commissioner, 115 T.C. 417 (2000), is dicta. We should not be deciding the issue of what happens if there is no hearing if these are not the facts of this case.
As recently as August 2001, we held: “Section 6330(d) provides for judicial review of the determination resulting from the section 6330(b) hearing.” Watson v. Commissioner, T.C. Memo. 2001-213 (emphasis added). In the past few months, the rule that a taxpayer must have a section 6330 hearing prior to judicial review has not proven to defy practical workability, related principles of law have not so far developed as to have left the old rule no more than a remnant of abandoned doctrine, and facts have not so changed as to have robbed the old rule of significant application or justification. Planned Parenthood v. Casey, 505 U.S. 833, 854-855 (1992).
Furthermore, stare decisis assumes increased importance when the antecedent case involved the construction of a statute. Brewster v. Commissioner, 607 F.2d 1369, 1373-1374 (D.C. Cir. 1979), affg. 67 T.C. 352 (1976). In such a case, Congress can cure any error made by the Court, and until it does the bar and the public are justified in expecting the Court, except in the most egregious cases, not to depart from the previous interpretation. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Brandéis, J., dissenting); Hesselink v. Commissioner, 97 T.C. 94, 100 (1991).
Additionally, in illustrating the provisions relating to our jurisdiction, the temporary regulations provide:
Q-F5. What issue or issues may the taxpayer raise before the Tax Court or before a district court if the taxpayer disagrees with the Notice of Determination?
A-F5. In seeking Tax Court or district court review of Appeal’s Notice of Determination, the taxpayer can only ask the court to consider an issue that was raised in the taxpayer’s CDP hearing.
[Sec. 301.6330-lT(f)(2) Q&A-F5, Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3412 (Jan. 22, 1999); emphasis added.]
Thus, if there is no hearing, there are no issues for us to review.
Section 6330(e) further demonstrates the problems associated with taking jurisdiction when a taxpayer did not receive a section 6330 hearing. Section 6330(e)(1) provides that “if a hearing is requested under subsection (a)(3)(B), the levy actions which are the subject of the requested hearing * * * shall be suspended for the period during which such hearing, and appeals therein, are pending.” Collection, therefore, cannot proceed until there has been a hearing. If the IRS is prevented by statute from collecting because the levy action is suspended until there is a hearing, then what will the IRS be able to do after we render our opinion? Nothing — because there was no hearing.
Foley, J., agrees with this dissenting opinion.