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 be 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.

GALE, J., 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 selfreported 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 sec

tion 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):

1 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.] 2 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.]

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. 105599, 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 selfassessed 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.

MARVEL, J., 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 petititoners, 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.

GOEKE, J., concurring in result: I agree with the result reached by the majority and its interpretation of the term "underlying tax liability". I write separately to clarify the significance of petitioners' amended return.

Under section 6330(c)(2)(B), petitioners were permitted to raise at the hearing challenges to the existence or amount of their underlying tax liability. Petitioners raised a challenge to the amount of their underlying liability, and the parties agreed that petitioners would be permitted to submit an