concurring: I agree with the result reached by the majority. I write separately to address respondent’s contention that the legislative history supports an interpretation of section 6330(c)(2)(B) that precludes a taxpayer’s ability to dispute a tax liability reported on the return (a self-reported or “self-assessed” liability) in a section 6330 proceeding.
Assuming that the language of section 6330(c)(2)(B) contains sufficient ambiguity to justify resort to the legislative history, that history offers little support for respondent’s position and indeed suggests the contrary.
Section 6330 originated in section 3401 of the Senate version of H.R. 2676, the bill that, after amendment, was enacted as the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat. 747. The predecessor of section 6330(c)(2)(B) in the Senate version provided without limitation that a taxpayer could raise in a section 6330 proceeding “challenges to the underlying tax liability as to existence or amount”. H.R. 2676, sec. 3401(b), 105th Cong., 2d Sess. (1998), 144 Cong. Rec. S4163 (daily ed. May 4, 1998).
The expansive Senate version provoked a critical response from the Treasury Department and other representatives of the executive branch concerned with its overbreadth. An OMB Statement of Administration Policy issued after the Senate Finance Committee reported the Senate version, and a letter from the Treasury Secretary sent to the Chairman of the House Ways & Means Committee (after Senate passage, with respect to the House-Senate conference on the legislation), both identified two principal concerns of overbreadth; namely, that under the Senate version a taxpayer could dispute, in a section 6330 proceeding, (i) tax liabilities that had been previously litigated or (ii) tax liabilities that had been self-assessed. See Statement of Administration Policy, Executive Office of the President (Office of Management and Budget), on H.R. 2676 — Internal Revenue Service Restructuring and Reform Act (Reported by the Senate Committee on Finance) (May 5, 1998),1 reprinted in Tax Notes Today, 98 TNT 87-18 (May 6, 1998); letter from Robert E. Rubin, Secretary of the Treasury to William Archer, Chairman, Committee on Ways & Means, U.S. House of Representatives (June 2, 1998),2 reprinted in Tax Notes Today, 98 TNT 112-40 (June 11, 1998).
The final version of the legislation devised by the conference committee added the following (emphasized) limiting language in section 6330(c)(2)(B):
SEC. 6330(c)(2). Issues at hearing.
(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. [Emphasis added.]
I would submit that it is clear that the conferees, in adding this limiting language to the statute, intended to address the expressed concern about a taxpayer’s ability to dispute previously litigated tax liabilities in a section 6330 proceeding. The new language is directed specifically at a taxpayer’s previous opportunities for dispute, either by having been afforded an opportunity for a deficiency proceeding or otherwise (as, for example, in the case of taxes not eligible for deficiency proceedings). But one cannot as readily infer from the statutory modifications an intention to foreclose consideration of self-assessed liabilities in a section 6330 proceeding. The report of the conference committee is similarly opaque, lacking any specific indication that the conferees intended to address the concern expressed about allowing taxpayers to dispute self-assessed liabilities in a section 6330 proceeding. The only reference in the report to the newly added limiting language of the statute is a single sentence that closely tracks the statute.
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. * * * 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. 747, 1019; emphasis added.]
These aspects of the legislative history, rather than offering any support for respondent’s position, give rise to a negative inference concerning Congress’s intention to foreclose review of self-assessed liabilities in section 6330 proceedings. Having been advised of the executive branch’s concern about allowing taxpayers to dispute self-assessed liabilities in section 6330 proceedings, the conferees’ failure to refer to self-assessed amounts when modifying the provision at issue, in either the statute itself or the conference report, suggests that they chose not to address this particular concern.
Swift, Laro, Foley, Marvel, and Wherry, JJ., agree with this concurring opinion.The OMB Statement of Administration Policy states:
However, some of the new procedural provisions in the reported bill may unintentionally make it easier for noncompliant taxpayers to avoid paying their fair share of taxes. For example, the bill would allow additional appeals and court challenges before the IRS can collect tax from a taxpayer who refuses to pay, even if the taxpayer has voluntarily self-assessed the amount due or a court has held that the taxpayer owes the tax. [Emphasis added.]
Treasury Secretary Rubin’s letter states:
The Senate bill provides taxpayers with additional advance notification and appeal rights prior to levy ***,*** The appeal right in levy cases would enable taxpayers to litigate the same tax liability repeatedly * * *. The provision would change the entire collections process, including the process for many taxpayers who have self-assessed their tax liability but not paid in full * * [Emphasis added.]