dissenting: With due respect, I dissent from the holding of the majority. I agree that the majority’s literal reading of the phrase “underlying tax liability” is one possible way to interpret that phrase. It is my view, however, that the phrase “underlying tax liability”, when considered in the context of section 6330 and specifically in context of section 6330(c)(2)(B), could also be read to not include a tax liability that a taxpayer has reported and admitted was owing.
The intent of the statute was to give a taxpayer the right to challenge the “underlying tax liability * * * if the [taxpayer] * * * did not otherwise have an opportunity to dispute such tax liability.” Sec. 6330(c)(2)(B) (emphasis added). That phrase should not be interpreted to mean that a person could contest his or her own judgment as to the correct tax. The opportunity to contest tax liabilities is, without exception, granted by statute.1 If a person files a tax return and self-assesses or admits to owing a tax liability but fails to pay the admitted liability, the statutory opportunity to contest such liability has traditionally been through a refund suit.2 Normally, with respect to an income tax liability, the right to sue for a refund requires full payment of the disputed liability. Under the majority’s reading of section 6330(c)(2)(B), there would be no such requirement for payment prior to being able to contest the underlying merits of a self-assessed amount in the context of a section 6330 hearing before this Court.
The majority’s interpretation results in a dramatic and improbable change from more than 75 years of established tax litigation procedure and precedent. If Congress had intended such a dramatic change, it certainly would have made some reference or modification to the existing statutory framework for refund claims and/or suits.
Finally, I find it inconceivable that Congress intended that taxpayers who filed returns admitting that they owed tax are to be given the opportunity to contest their own “assessment” of the tax due, when the respondent seeks to collect it. It is my view that Congress intended to ensure that taxpayers had certain rights with respect to the collection process and to permit them to contest any changes respondent proposed,3 if they had not already had the opportunity to do so.
Chiechi, J., agrees with this dissenting opinion.It is well established that the United States is immune from suit except where Congress by specific statute has waived its sovereign immunity. See, e.g., United States v. Sherwood, 312 U.S. 584, 586 (1941).
We must distinguish the circumstances we consider from deficiency proceedings where we have authority to consider overpayments. See sec. 6512(b). A proceeding under sec. 6330 is not a deficiency proceeding.
Including respondent’s proposed changes from a taxpayer’s self-assessed tax liability.