Joseph D. and Wanda S. Lunsford - Page 26




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          related to the Commissioner’s proposed levy and that the majority           
          are wrong in not allowing petitioners to have a CDP hearing at              
          which to raise relevant issues.                                             
               6.  Substituting Their Judgment for the Judgment of Appeals            
               The CDP hearing allows the Appeals officer to exercise his             
          or her judgment as to the propriety of a proposed collection                
          action and to make a resulting determination from matters                   
          discussed at the hearing.  See, e.g., sec. 6330(c)(2) and (3).              
          Absent an Appeals officer’s consideration of issues at a hearing,           
          I do not believe that there is any determination of an Appeals              
          officer that this Court could sustain.  Given the statement in              
          the legislative history that this Court is “expected to review              
          the appellate officer’s determination for abuse of discretion”,             
          S. Rept. 105-174, supra at 68, 1998-3 C.B. at 604; see also H.              
          Conf. Rept. 105-599, supra at 266, 1998-3 C.B. at 1020 (similar             
          language), I find inescapable the conclusion that where an                  
          Appeals officer fails to hold a properly requested CDP hearing,             
          that there is an abuse of discretion.  Indeed, to my mind, the              
          mere fact that the Appeals officer here did not comply with the             
          statute and hold the legislatively mandated hearing with                    
          petitioners, as they properly requested, is a per se abuse of               
          discretion.                                                                 
               I disagree with the majority’s conclusion that we may decide           
          this case favorably to respondent on the basis of the record at             






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