On June 29, 2021, the Tax Court issued a Memorandum Opinion in the case of Benson v. Commissioner (T.C. Memo. 2021-78). The primary issue presented in Benson v. Commissioner was whether the petitioner was precluded from challenging his underlying liabilities in a CDP case.

Background to Benson v. Commissioner

The petitioner has sought to challenge his 2008 and 2009 tax liabilities both in his CDP hearing and in this Court. The petitioner had two prior opportunities to contest his underlying liabilities for tax years 2008 and 2009. First, there is no dispute that the IRS sent, and Mr. Benson received, notices of deficiency for both years. Second, Mr. Benson does not contest, that the IRS issued a notice of intent to levy to him on October 18, 2016.

Prior Opportunity to Challenge

A taxpayer may challenge his underlying liability in a CDP proceeding if he “did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” IRC §§ 6320(c), 6330(c)(2)(B); see also Treas. Reg. § 301.6320-1(e)(3), Q&A-E2. “If the taxpayer previously received a CDP Notice under IRC § 6330 with respect to the same tax and tax period and did not request a CDP hearing with respect to that earlier CDP Notice, the taxpayer had a prior opportunity to dispute the existence or amount of the underlying tax liability.” Treas. Reg. § 301.6230-1(e)(3), Q&A-E7; see also Bell v. Commissioner, 126 T.C. 356, 358 (2006); Lang v. Commissioner, T.C. Memo. 2014-183, at *12-*14.

So, What Say You, Judge Urda?

As he had the opportunity to petition the Tax Court at that time for redetermination of his liabilities, these liabilities were not properly before the Court. See IRC § 6320(c), 6330(c)(2)(B); Beam v. Commissioner, T.C. Memo. 2017-200, at *10.

(T.C. Memo. 2021-78) Benson v. Commissioner

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