                                                CAROL DIANE GRAY, PETITIONER v. COMMISSIONER
                                                     OF INTERNAL REVENUE, RESPONDENT*

                                                        Docket No. 27849–09L.                      Filed April 25, 2013.

                                                  P moved for interlocutory appeal pursuant to I.R.C. sec.
                                               7482(a)(2)(A) of an order dismissing for lack of jurisdiction, on
                                               account of an untimely petition, that portion of the case
                                               seeking review under I.R.C. sec. 6330(d)(1) of R’s determina-
                                               tion to proceed with collection actions.
                                                  1. Held: P’s contention that the period in which to file a
                                               petition for review of a collection action determination under
                                               I.R.C. sec. 6330 affecting the underlying tax liability is the 90-

                                       * This Opinion supplements our previously filed Opinion, Gray v. Com-
                                      missioner, 138 T.C. 295 (2012).

                                                                                                                                   163




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                                      164                 140 UNITED STATES TAX COURT REPORTS                                   (163)

                                                   day period provided in I.R.C. sec. 6213 rather than the 30-day
                                                   period provided in I.R.C. sec. 6330(d)(1) does not demonstrate
                                                   a substantial ground for difference of opinion within the
                                                   meaning of I.R.C. sec. 7482(a)(2)(A).
                                                     2. Held, further, P has failed to show that an immediate
                                                   appeal from the order may materially advance the ultimate
                                                   termination of this litigation within the meaning of I.R.C. sec.
                                                   7482(a)(2)(A). Consequently P’s motion will be denied.

                                           Jonathan P. Decatorsmith, for petitioner.
                                           John Spencer Hitt, for respondent.
                                                                      SUPPLEMENTAL OPINION

                                         GALE, Judge: In an Opinion previously issued in this case,
                                      Gray v. Commissioner, 138 T.C. 295 (2012), we held that we
                                      lacked jurisdiction to review respondent’s determination to
                                      proceed with certain collection actions set forth in a notice of
                                      determination issued to petitioner (notice of determination)
                                      because the petition was untimely, not having been filed
                                      within 30 days of the notice of determination as required by
                                      section 1 6330(d)(1). 2 The notice of determination had deter-
                                      mined that respondent could proceed with a lien and a levy
                                      to collect unpaid income tax reported as due by petitioner on
                                      untimely joint returns filed for 1992, 1993, 1994, and 1995
                                      and assessed by respondent pursuant to section 6201(a)(1).
                                      Petitioner had challenged the underlying tax liabilities at her
                                      hearing provided pursuant to section 6330, and the notice of
                                      determination abated a portion of the income tax assessment
                                      for each of 1992 and 1993. The notice also abated the section
                                      6651(a) additions to tax that had been assessed pursuant to
                                      section 6665(b) for each taxable year at issue. In accordance
                                      with our Opinion, we issued an order (dismissal order) dis-
                                      missing this case for lack of jurisdiction insofar as it con-
                                      cerned review of the determination to proceed with the collec-
                                      tion actions challenged in the petition. Petitioner now seeks
                                      an interlocutory appeal of the dismissal order. Pending
                                           1 All
                                              section references are to the Internal Revenue Code of 1986 in effect
                                      at all relevant times, and all Rule references are to the Tax Court Rules
                                      of Practice and Procedure.
                                         2 In addition, we held that the petition was timely for purposes of our

                                      jurisdiction to review respondent’s failure to abate interest under sec.
                                      6404(h) and that further proceedings were necessary to determine whether
                                      we had jurisdiction under sec. 6015(e)(1)(A) to determine the appropriate
                                      relief available to petitioner under sec. 6015.




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                                      (163)                            GRAY v. COMMISSIONER                                       165


                                      before the Court is petitioner’s motion for certification of
                                      question for appeal, wherein she seeks an amendment to the
                                      dismissal order to include a statement allowing an interlocu-
                                      tory appeal.
                                         Petitioner asserts in her motion that the adjustments
                                      made in the notice of determination to her Federal income
                                      tax liabilities for the years at issue constitute ‘‘deficiency
                                      determinations’’ that entitle her to a 90-day period for filing
                                      a petition with this Court for review of a deficiency deter-
                                      mination, see sec. 6213(a), rather than the 30-day period for
                                      filing a petition for review of a collection action determina-
                                      tion under section 6330, see sec. 6330(d)(1). Petitioner asks
                                      us to certify for immediate appeal the issue whether ‘‘defi-
                                      ciency procedures instituted during a * * * [section 6330]
                                      hearing have a 30 day or 90 day period for timely filing peti-
                                      tions to the Tax Court for review.’’ Respondent filed an objec-
                                      tion to petitioner’s motion.
                                      I. Section 7482(a)(2)(A) in General
                                        Section 7482(a)(2)(A) provides that a U.S. Court of
                                      Appeals, upon a timely request by a party to litigation in this
                                      Court, may permit an immediate appeal of an interlocutory
                                      order of this Court when it contains a statement that ‘‘a
                                      controlling question of law is involved with respect to which
                                      there is a substantial ground for difference of opinion and
                                      that an immediate appeal from that order may materially
                                      advance the ultimate termination of the litigation’’. See also
                                      Rule 193(a). Accordingly, this Court may certify an interlocu-
                                      tory order for immediate appeal if we conclude that (1) a
                                      controlling question of law is involved, (2) substantial
                                      grounds for a difference of opinion are present as to that
                                      question of law, and (3) an immediate appeal may materially
                                      advance the ultimate termination of the litigation. See sec.
                                      7482(a)(2)(A); Kovens v. Commissioner, 91 T.C. 74, 77 (1988);
                                      New York Football Giants, Inc. v. Commissioner, T.C. Memo.
                                      2003–28. Each of these requirements must be met before we
                                      certify an interlocutory order for immediate appeal. See
                                      Kovens v. Commissioner, 91 T.C. at 77.
                                        The proper application of section 7482(a)(2) requires bal-
                                      ancing of the policies favoring interlocutory appeals—i.e.,
                                      avoidance of wasted trial and harm to litigants—against the




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                                      166                 140 UNITED STATES TAX COURT REPORTS                                   (163)


                                      policies underlying the so-called final judgment rule; that is,
                                      avoidance of piecemeal litigation and dilatory and harassing
                                      appeals. Kovens v. Commissioner, 91 T.C. at 78. Our certifi-
                                      cation of an interlocutory order for an immediate appeal is
                                      an exceptional measure that we employ sparingly. See Gen.
                                      Signal Corp. & Subs. v. Commissioner, 104 T.C. 248 (1995),
                                      aff ’d on other grounds, 142 F.3d 546 (2d Cir. 1998); Kovens
                                      v. Commissioner, 91 T.C. at 78; see also Coopers & Lybrand
                                      v. Livesay, 437 U.S. 463, 475 (1978). As we stated in Kovens,
                                      ‘‘interlocutory orders should be granted only in exceptional
                                      cases.’’ Kovens v. Commissioner, 91 T.C. at 78 (citing 1958
                                      U.S.C.C.A.N. 5255, 5259, 5260–5261). Such an approach
                                      reflects a strong policy in favor of avoiding piecemeal review.
                                      See id.
                                         We decline to certify the dismissal order for interlocutory
                                      appeal. We are not persuaded that there are substantial
                                      grounds for a difference of opinion regarding the applicable
                                      petitioning period or that the interlocutory appeal will mate-
                                      rially advance the ultimate termination of the litigation. We
                                      explain our reasoning below.
                                      II. Whether Substantial Grounds for a Difference of Opinion
                                          Are Present as to the Question of Law
                                         Petitioner contends that there is a substantial basis for a
                                      difference of opinion on the issue of the period for filing a
                                      petition with this Court for review of a determination under
                                      section 6330 when it affects a taxpayer’s underlying tax
                                      liability. Petitioner contends that section 6330 ‘‘does not
                                      explicitly state’’ whether a determination concerning the tax-
                                      payer’s underlying tax liability must be appealed to the Tax
                                      Court within the 30-day period provided in that section. In
                                      petitioner’s view, different periods for filing a petition for Tax
                                      Court review apply, depending on the issues raised in the
                                      section 6330 hearing, such as interest abatement, see Gray v.
                                      Commissioner, 138 T.C. at 305, spousal relief, see Raymond
                                      v. Commissioner, 119 T.C. 191, 194 (2002), or, as in this case,
                                      the underlying tax liability. Petitioner asserts that allowing
                                      only 30 days to file a petition when the underlying tax
                                      liability is properly at issue frustrates congressional intent to
                                      allow taxpayers sufficient time to evaluate their position con-
                                      cerning the underlying tax liability. We disagree.




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                                      (163)                            GRAY v. COMMISSIONER                                       167


                                        Generally, the ‘‘substantial ground for difference of
                                      opinion’’ test is interpreted by the courts to involve questions
                                      that present serious and unsettled legal issues. Kovens v.
                                      Commissioner, 91 T.C. at 80 (citing Cohen v. Beneficial
                                      Indus. Loan Corp., 337 U.S. 541, 547 (1949)). The law con-
                                      cerning the period for filing a petition under section 6330
                                      involving review of the underlying tax liability is not
                                      unsettled. For a taxpayer seeking review of a determination
                                      under section 6320 or 6330, section 6330(d)(1) provides that
                                      the petition must be filed with the Tax Court within 30 days
                                      of the determination regardless of whether the underlying
                                      tax liability is at issue. As we stated in Gray v. Commis-
                                      sioner, 138 T.C. at 300:
                                           The statutory scheme of section 6330 clearly contemplates that the
                                           underlying tax liability may be challenged in designated circumstances
                                           in a section 6330 proceeding and requires the determination to consider
                                           such a challenge when properly made. See sec. 6330(c)(2)(B), (3)(B). How-
                                           ever, the statute does not distinguish between determinations where the
                                           underlying tax liability is properly at issue and those where it is not.
                                           The same 30-day period to appeal the determination applies across the
                                           board. See sec. 6330(d).

                                         Some of the arguments petitioner advances in her motion
                                      warrant further discussion. Petitioner contends that ‘‘Con-
                                      gress is silent as to whether or not underlying liability issues
                                      discussed and ultimately determined during the course of a
                                      CDP hearing are governed by the 90-day filing period
                                      applicable to deficiency determinations under 26 U.S.C. §
                                      6213(a).’’ We disagree; there is no gap in the statute con-
                                      cerning the period for filing a petition for review of a section
                                      6330 determination concerning an underlying tax liability.
                                      Under section 6330, if a taxpayer has timely requested a
                                      hearing, he may raise at the hearing ‘‘any relevant issue
                                      relating to the unpaid tax’’ including, in designated cir-
                                      cumstances, ‘‘challenges to the existence or amount of the
                                      underlying tax liability’’. Sec. 6330(c)(2). If the taxpayer chal-
                                      lenges the ‘‘underlying tax liability’’ as permitted under sec-
                                      tion 6330(c)(2), ‘‘[t]he determination by an appeals officer
                                      under this subsection shall take into consideration * * * the
                                      issues raised under * * * [section 6330(c)](2)’’ (which include
                                      any challenge to the ‘‘underlying tax liability’’ raised by the
                                      taxpayer). Sec. 6330(c)(3). The foregoing ‘‘determination’’ is
                                      then subject to judicial review as provided in section




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                                      168                 140 UNITED STATES TAX COURT REPORTS                                   (163)


                                      6330(d)(1): ‘‘The person may, within 30 days of a determina-
                                      tion under this section, appeal such determination to the Tax
                                      Court (and the Tax Court shall have jurisdiction with respect
                                      to such matter).’’ (Emphasis added.) The statute leaves no
                                      room for an alternate petitioning period as petitioner sug-
                                      gests.
                                         Citing the fact that petitioning periods greater than 30
                                      days are triggered when a taxpayer raises a claim in a sec-
                                      tion 6330 proceeding for spousal relief (90 days) or interest
                                      abatement (180 days), petitioner suggests that a similar prin-
                                      ciple should apply in the case of a challenge to the under-
                                      lying tax liability and trigger the 90-day petitioning period
                                      applicable to deficiency determinations, since adjustments to
                                      the underlying tax liability, in petitioner’s view, ‘‘constitute’’
                                      deficiency determinations.
                                         Petitioner’s comparison of underlying tax liability deter-
                                      minations in a section 6330 proceeding to those covering
                                      spousal relief or interest abatement is misplaced, however.
                                      When a taxpayer raises in a section 6330 proceeding a claim
                                      for spousal relief under section 6015 or interest abatement
                                      under section 6404, the Internal Revenue Code provides
                                      separate and independent bases (besides section 6330(d)(1))
                                      for Tax Court jurisdiction to review the Commissioner’s
                                      determinations concerning relief; namely, section 6015(e) and
                                      section 6404(h), respectively. The statutory petitioning
                                      periods provided for those independent grants of Tax Court
                                      jurisdiction accordingly apply. See Gray v. Commissioner, 138
                                      T.C. at 305 (interest abatement); Raymond v. Commissioner,
                                      119 T.C. at 193–194 (spousal relief). By contrast, both the
                                      taxpayer’s entitlement to dispute the ‘‘underlying tax
                                      liability’’—which, in a section 6330 collection proceeding, is
                                      necessarily an already assessed tax (or penalty)—and the
                                      Tax Court’s jurisdiction to review the Commissioner’s deter-
                                      mination concerning the ‘‘underlying tax liability’’, are
                                      derived entirely from section 6330. But for that section, a
                                      taxpayer liable for an assessed income tax generally could
                                      dispute it only by paying it and instituting suit for a refund.
                                      See generally sec. 7422; 28 U.S.C. sec. 1346(a)(1) (2006). The
                                      30-day petitioning period provided in section 6330(d)(1) is
                                      thus the exclusive, statutorily prescribed petitioning period
                                      for Tax Court review of a ‘‘determination’’ concerning an




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                                      (163)                            GRAY v. COMMISSIONER                                       169


                                      ‘‘underlying tax liability’’ as those terms are employed in sec-
                                      tion 6330.
                                         Moreover, petitioner’s contention that the adjustments
                                      made in the notice of determination to the income tax liabil-
                                      ities for 1992 and 1993 and to the additions to tax for all
                                      years ‘‘constitute deficiency determinations’’ is in clear con-
                                      flict with the statutory definition of a ‘‘deficiency’’. A ‘‘defi-
                                      ciency’’ is a fundamental term of art in tax procedure. It is
                                      defined in section 6211(a) for all Internal Revenue Code pur-
                                      poses as follows:
                                           SEC. 6211. DEFINITION OF A DEFICIENCY.
                                             (a) * * * For purposes of this title in the case of income * * * taxes
                                           imposed by subtitle[ ] A * * * , the term ‘‘deficiency’’ means the amount
                                           by which the tax imposed by subtitle A * * * exceeds the excess of—
                                               (1) the sum of
                                                  (A) the amount shown as the tax by the taxpayer upon his return,
                                               if a return was made by the taxpayer and an amount was shown
                                               as the tax by the taxpayer thereon, plus
                                                  (B) the amounts previously assessed (or collected without assess-
                                               ment) as a deficiency, over—
                                               (2) the amount of rebates, as defined in subsection (b)(2), made.

                                      Simply put, a ‘‘deficiency’’ in income tax generally exists
                                      where the amount of tax imposed by subtitle A of the Code
                                      exceeds the amount of tax shown by the taxpayer on his
                                      return. When the Secretary (or his delegate, the Commis-
                                      sioner) ‘‘determines’’ that a ‘‘deficiency’’ exists, he is author-
                                      ized to send a ‘‘notice of such deficiency’’ to the taxpayer, sec.
                                      6212(a), and the taxpayer is entitled, generally within 90
                                      days thereafter, 3 to petition the Tax Court for a ‘‘redeter-
                                      mination’’ of that ‘‘deficiency’’, sec. 6213(a).
                                         For the years at issue in this case, no ‘‘deficiency’’ was ever
                                      determined by respondent; that is, respondent has at no
                                      point ever asserted that the amounts of tax imposed by sub-
                                      title A for these years are greater than those petitioner
                                      reported on her returns. Instead, respondent assessed the
                                      income tax at issue for these years in the amounts reported
                                      as due by petitioner and her former spouse on late-filed joint
                                      returns, without resort to the deficiency procedures of sec-
                                      tions 6212 and 6213. See sec. 6201(a)(1). Likewise, the addi-
                                        3 The period is 150 days where the notice is addressed to a person out-

                                      side the United States. Sec. 6213(a).




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                                      170                 140 UNITED STATES TAX COURT REPORTS                                   (163)


                                      tions to tax under section 6651(a)(1) and (2) were also sum-
                                      marily assessed by respondent without resort to the defi-
                                      ciency procedures, as he is authorized to do pursuant to sec-
                                      tion 6665(b). 4 In short, these additions to tax did not give
                                      rise to a ‘‘deficiency’’ as defined for Internal Revenue Code
                                      purposes. 5
                                         The assessed but unpaid income tax and additions to tax
                                      for the years at issue constitute an ‘‘underlying tax liability’’
                                      for each year as that term is used in section 6330(c)(2)(B)
                                      because they are ‘‘amounts * * * owe[d] pursuant to the tax
                                      laws that are the subject of the Commissioner’s collection
                                      activities.’’ See Callahan v. Commissioner, 130 T.C. 44, 49
                                      (2008). But they are not ‘‘deficiencies’’ for Internal Revenue
                                      Code purposes, and the section 6330 notice of determination
                                      action to reduce or eliminate them in no way constitutes a
                                      ‘‘deficiency determination’’. These liabilities and the notice of
                                      determination action with respect to them simply cannot be
                                      fitted within the parameters of sections 6212 and 6213. Con-
                                      sequently, the 90-day petitioning period provided in section
                                      6213 has no application to them; any claim to the contrary
                                      ignores the definition of a ‘‘deficiency’’.
                                         Presumably, the more circumscribed 30-day petitioning
                                      period for Tax Court review of section 6330 determinations
                                      concerning ‘‘underlying tax liabilities’’ reflects congressional
                                      recognition that ‘‘underlying tax liabilities’’ represent
                                      assessed taxes whereas ‘‘deficiencies’’ do not. As assessed
                                      taxes, the liabilities making up the ‘‘underlying tax liability’’
                                      have already been accorded the various preassessment proce-
                                      dural safeguards that Congress deemed appropriate
                                      (including the 90-day petitioning period for Tax Court review
                                      in the case of taxes eligible for ‘‘deficiency’’ procedures). 6 In
                                           4 Thenotice of determination abated all of the sec. 6651(a) additions to
                                      tax at issue. We find it unnecessary to consider whether, in the event peti-
                                      tioner’s petition had been timely with respect to respondent’s collection ac-
                                      tion determinations under sec. 6330, there would have been a justiciable
                                      issue to review concerning the additions to tax. See Greene-Thapedi v.
                                      Commissioner, 126 T.C. 1 (2006).
                                         5 As no deficiencies were ever determined with respect to the years at

                                      issue, the additions to tax at issue would not have been eligible for defi-
                                      ciency procedures by virtue of sec. 6214(a). See Downing v. Commissioner,
                                      118 T.C. 22, 26–27 (2002).
                                         6 In the case of income tax and other taxes eligible for ‘‘deficiency’’ proce-

                                      dures, they may be assessed—and therefore become part of an ‘‘underlying




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                                      (163)                            GRAY v. COMMISSIONER                                       171


                                      any event, the statutorily prescribed review provided for
                                      ‘‘deficiency’’ determinations and for determinations under
                                      section 6330 of challenged underlying tax liabilities are not
                                      equivalent. Cf. Freije v. Commissioner, 125 T.C. 14, 35–36
                                      (2005) (Tax Court review of underlying tax liability in section
                                      6330 proceeding does not satisfy taxpayer’s right to a defi-
                                      ciency proceeding to establish the liability). Petitioner’s
                                      suggestion that they be treated as equivalent is contrary to
                                      the statute.
                                         The fault in petitioner’s reasoning is perhaps best illus-
                                      trated by the anomalous results it produces. The ‘‘underlying
                                      tax liabilities’’ that were adjusted in this case consist of
                                      income tax reported as due on returns that respondent
                                      assessed pursuant to section 6201(a)(1)—i.e., without defi-
                                      ciency procedures—and additions to tax under section
                                      6651(a) that respondent likewise was entitled to assess under
                                      section 6665(b) without resort to deficiency procedures. 7
                                      That is to say, in both instances Congress concluded that
                                      deficiency procedures were not warranted to establish these
                                      liabilities. Yet petitioner would have us interpret section
                                      6330 so that we extend the 90-day petitioning period for defi-
                                      ciency determinations to two categories of tax liabilities that
                                      Congress expressly decided did not warrant deficiency proce-
                                      dures. And the problem does not stop there. The phrase
                                      ‘‘underlying tax liability’’ encompasses other taxes that are
                                      not eligible for deficiency procedures, such as, for example,
                                      employment taxes imposed by subtitle C of the Internal Rev-
                                      enue Code, see Salazar v. Commissioner, T.C. Memo. 2008–
                                      38, aff ’d, 338 Fed. Appx. 75 (2d Cir. 2009), and section 6702
                                      tax liability’’—only after the Commissioner has mailed a notice of defi-
                                      ciency to the taxpayer’s last known address extending to him a 90-day (or
                                      150-day) period for petitioning the Tax Court for review. Secs. 6212–6215.
                                      Further, in these circumstances, the taxpayer may challenge ‘‘underlying
                                      tax liabilities’’ that have been the subject of a properly addressed notice
                                      of deficiency only if the taxpayer can show that he did not receive the no-
                                      tice of deficiency. Sec. 6330(c)(2)(B); see Kuykendall v. Commissioner, 129
                                      T.C. 77, 80 (2007); Tatum v. Commissioner, T.C. Memo. 2003–115.
                                         7 Our jurisdiction to review the Commissioner’s determination to proceed

                                      with collection of these two categories of tax liabilities as ‘‘underlying tax
                                      liabilities’’ in a sec. 6330 proceeding is well established. See Montgomery
                                      v. Commissioner, 122 T.C. 1 (2004) (taxpayer-reported tax assessed pursu-
                                      ant to sec. 6201(a)(1)); Downing v. Commissioner, 118 T.C. at 27–28 (sec.
                                      6651(a) additions to tax assessed pursuant to sec. 6665(b)).




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                                      172                 140 UNITED STATES TAX COURT REPORTS                                   (163)


                                      frivolous return penalties, see Callahan v. Commissioner, 130
                                      T.C. at 49. Yet under petitioner’s theory, adjustments to
                                      these taxes in a section 6330 proceeding would likewise
                                      entitle the taxpayer to the 90-day petitioning period intended
                                      for deficiency determinations.
                                         In summary, we conclude petitioner has not shown that
                                      there are any substantial grounds for a difference of opinion
                                      concerning the petitioning period applicable to determina-
                                      tions under section 6330 affecting the underlying tax
                                      liability.
                                      III. Whether an Immediate Appeal Would Materially Advance
                                           the Ultimate Termination of the Litigation
                                         We also conclude that an immediate appeal would not
                                      materially advance the ultimate termination of the litigation
                                      within the meaning of section 7482(a)(2)(A). Petitioner con-
                                      tends that in the interest of judicial economy, this Court
                                      should hear all justiciable issues at the same time, after the
                                      U.S. Court of Appeals for the Seventh Circuit remands the
                                      case to the Tax Court for further proceedings. However, an
                                      immediate appeal would produce two litigation tracks for
                                      substantively intertwined issues. In addition, petitioner
                                      already has two cases raising the identical issue pending
                                      before the Court of Appeals. See Gray v. Commissioner,
                                      docket No. 27850–09L (Mar. 28, 2012), appeal filed (7th Cir.
                                      June 29, 2012); Gray v. Commissioner, docket No. 3260–08L
                                      (Mar. 28, 2012), appeal filed (7th Cir. June 29, 2012).
                                         Accordingly, our holding concerning the untimeliness of the
                                      petition in this case for purposes of review pursuant to sec-
                                      tion 6330(d)(1) does not fall within the exceptional category
                                      of cases contemplated by Congress when enacting section
                                      7482(a)(2), and we conclude that the requirements for an
                                      interlocutory appeal have not been met.




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                                      (163)                            GRAY v. COMMISSIONER                                       173


                                           To reflect the foregoing,
                                                                     An order denying petitioner’s motion will
                                                                   be issued.

                                                                               f




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