concurring: I agree with the majority that respondent’s motion for summary judgment must be denied in this case. There are several reasons for doing so, including the reasons set forth in the majority opinion. I believe, however, that the facts of this case raise a serious factual issue as to whether the taxpayers received the hearing mandated by section 6330, and on this ground alone, I would deny respondent’s motion.
The majority opinion states that, on April 18, 2002, petitioners submitted a request for an administrative hearing. In the letter accompanying the request, petitioners’ representative advised the Internal Revenue Service that petitioners intended to file an amended income tax return to “more appropriately report the exercise of the incentive and nonqualified stock options” that gave rise to petitioners’ unpaid tax liability for 2000. Petitioners’ representative also challenged the appropriateness of the proposed levy, indicated that the levy would cause irreparable harm to petitioners, and stated that there were reasonable collection alternatives. Appeals Officer Johnson had a conversation with petitioners’ representative on July 22, 2002, in which he agreed that petitioners would be permitted to submit the amended return, but he did not set any deadline for doing so. On September 26, 2002, without any further notice to petitioners and apparently without holding the required hearing, the Appeals Office issued to petitioners a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330.
These facts raise a material issue of fact regarding whether or not petitioners received the hearing to which they were entitled under section 6330. Section 6330 requires that a taxpayer who timely requests a hearing receive a hearing. In this case, petitioners were not only challenging the underlying tax liability, but they were also challenging the reasonableness of the proposed levy and had clearly stated their desire to explore collection alternatives at the section 6330 hearing. The issuance of the notice of determination without any warning to petitioners and without any hearing deprived petitioners of the opportunity to present, and receive a determination on, all relevant issues as required by section 6330(c)(2) and (3).
If, instead of precipitously issuing the notice of determination, the Appeals Office had notified petitioners that it was rescheduling the hearing that was originally scheduled for July 25, 2002, petitioners would have had fair warning and could have prepared to present all of their issues at the hearing, including those related to the underlying tax liability. As it turned out, petitioners submitted their amended return, reflecting that they were due a refund of $519,087, on October 11, 2002.
Taxpayers who assert that they intend to file an amended return for the first time in connection with a hearing under section 6320 or 6330 should not take solace from the majority opinion. The majority opinion addresses a case in which the petitioners apparently demonstrated to the Appeals Office that they were serious about filing an amended return and that they had substantial reasons for doing so, because the Appeals Office agreed to give petitioners time to file their amended return. A taxpayer who procrastinates and seeks to rely solely on his announced intention to file an amended return as a defense to a proposed levy or lien in a section 6320/6330 hearing or in a section 6320/6330 proceeding before this Court proceeds at his peril as his undocumented intention is not likely to be viewed as a credible challenge to the underlying tax liability.
Haines, Goeke, and Wherry, JJ., agree with this concurring opinion.