concurring: I agree with the majority opinion. I write separately to emphasize two points underlying that opinion.
1. The Term “Underlying Tax Liability” Is Unambiguous
The relevant term, “underlying tax liability”, is clear and unambiguous and is read easily to mean the tax liability underlying the proposed levy. The beginning and end of our inquiry, therefore, must be the statutory text, and we must apply the plain meaning of that text. TVA v. Hill, 437 U.S. 153, 185 n.29 (1978); United States v. Am. Trucking Associations, 310 U.S. 534, 543 (1940). Only when text is “inescapably ambiguous” may we resort to the legislative history to discern its meaning. Garcia v. United States, 469 U.S. 70, 76 n.3 (1984). The meaning of the relevant term is not inescapably ambiguous. Whereas respondent essentially reads the relevant term to mean “underlying tax deficiency”, Congress obviously knew how to use the word “deficiency” and presumably would have used that word in the relevant term had it intended the reading advocated by respondent.
2. Legislative History Supports the Majority Opinion
Even if we were permitted to consult the legislative history of section 6330(c)(2) to discern the meaning of the relevant term, the legislative history supports interpreting the term in accordance with its plain meaning. The history to section 6330, as stated in the committee reports and as discerned from the setting in which that section was enacted, reveals that Congress intended that a taxpayer be allowed under that section to dispute a tax liability underlying a proposed levy whenever the taxpayer did not have a prior opportunity to dispute that liability either through the receipt of a notice of deficiency or otherwise.
The enactment of section 6330 followed more than a year of congressional investigations and hearings over the future of the Internal Revenue Service (IRS), resulting in highly publicized criticisms of the agency’s collection methods. Mesa Oil, Inc. v. United States, 86 AFTR 2d 2000-7312, 2001-1 ustc par. 50,130 (D. Colo. 2000). We know from the Senate report that the Senate Finance Committee intended that section 6330 would establish “formal procedures designed to insure due process where the IRS seeks to collect taxes by levy”. S. Rept. 105-174, at 67 (1998), 1998-3 C.B. 537, 603. We also know from that report that the committee believed that the addition of section 6330 would afford to taxpayers in dealing with the IRS rights which were similar to the rights afforded to all persons in dealing with any other creditor. S. Rept. 105-174, supra at 67, 1998-3 C.B. at 603. To this end, the committee declared, the Commissioner would by virtue of section 6330 need henceforth to “afford taxpayers adequate notice of collection activity and a meaningful hearing before the IRS deprives them of their property.” Id. The committee believed that these procedures would “increase fairness to taxpayers.” Id.
The history of section 6330(c)(2) also reveals that the Administration had during the legislative process voiced its concern to two Members of Congress that the relevant term included self-assessed liabilities and that those liabilities should not be included within the breadth of that section. See letter from L. Anthony Sutin, Acting Assistant Attorney General, to the Hon. William V. Roth, Jr., Chairman, Committee on Finance, U.S. Senate, and the Hon. William Archer, Chairman, Committee on Ways and Means, U.S. House of Representatives (June 8, 1998), reprinted in Tax Notes Today, 98 TNT 112-41 (June 11, 1998); letter from Robert E. Rubin, Secretary of the Treasury, to the Hon. William Archer, Chairman, Committee on Ways and Means, U.S. House of Representatives (June 2, 1998), reprinted in Tax Notes Today, 98 TNT 112-40 (June 11, 1998); cf. Statement of Administration Policy, Office of Management and Budget (May 5, 1998), reprinted in Tax Notes Today, 98 TNT 87-18 (May 6, 1998). The Administration wrote those letters after the Senate passed the Senate’s version of section 6330, H.R. 2676, sec. 3401(b), 105th Cong., 2d Sess. (May 5, 1998), but before the conference committee amended that version to read as enacted. The conferees, however, opted not to change the relevant term to address the Administration’s stated concern. The Senate version of section 6330(c)(2), see id., 144 Cong. Rec. S4163 (daily ed. May 4, 1998), provided (emphasis added):
SEC. 6330(c)(2). Issues at HEARING. — The person may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy, including—
(A) challenges to the underlying tax liability as to existence and amount,
(B) appropriate spousal defenses,
(C) challenges to the appropriateness of collection actions, and
(D) offers of collection alternatives, which may include the posting of a bond, the substitution of other assets, an installment agreement, or an offer-in-compromise.
Section 6330 as enacted provided (emphasis added):
SEC. 6330(c)(2). Issues at hearing.
(A) In general. — The person may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy, including—
(i) appropriate spousal defenses;
(ii) challenges to the appropriateness of collection actions; and
(iii) offers of collection alternatives, which may include the posting of a bond, the substitution of other assets, an installment agreement, or an offer-in-compromise.
(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 otherwise have an opportunity to dispute such tax liability.
As to the emphasized language, the conference report states:
The conference agreement includes a modified form of the Senate amendment. The IRS would be required to provide the taxpayer with a “Notice of Intent to Levy,” formally stating its intention to collect a tax liability by levy against the taxpayer’s property or rights to property. * * *
* * * In general, any issue that is relevant to the appropriateness of the proposed collection against the taxpayer can be raised at the pre-levy hearing. For example, the taxpayer can request innocent spouse status, make an offer-in-compromise, request an installment agreement or suggest which assets should he used to satisfy the tax liability. However, the validity of the tax liability can be challenged only if the taxpayer did not actually receive the statutory notice of deficiency or has not otherwise had an opportunity to dispute the liability.
[H. Conf. Rept. 105-599, at 265 (1998), 1998-3 C.B. 1019; emphasis added.]
The conferees’ use of the term “tax liability” in both places is consistent with a plain meaning application and is inconsistent with the position taken by respondent in this case.
Foley, J., agrees with this concurring opinion.