Crevenne C. and Barbara A. Carrillo - Page 10
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place prior to our opinion in Keene v. Commissioner,
supra; where the taxpayer had participated in an
Appeals Office hearing, albeit unrecorded; and where
all issues raised by the taxpayer could be properly
decided from the existing record. E.g., id. at 19, 20;
Frey v. Commissioner, T.C. Memo. 2004-87; Durrenberger
v. Commissioner, T.C. Memo. 2004-44; Brashear v.
Commissioner, T.C. Memo. 2003-196; Kemper v.
Commissioner, T.C. Memo. 2003-195.
The circumstances of the instant case are closely
analogous to those in Keene v. Commissioner, supra, and
diverge from those where it was determined that remand
was not necessary and would not be productive.
Critically, the letter scheduling the hearing was sent
on July 30, 2003, the aborted hearing was held on
September 11, 2003, and the notices of determination
were issued on January 21, 2004. Although these dates
are nearly a month, approximately 2 months, and more 6
months, respectively, after the opinion in Keene v.
Commissioner, supra, petitioners were not afforded an
opportunity for a recorded conference. Further,
because the requested face-to-face hearing was not
held, there still exists a possibility that petitioners
might have raised one or more nonfrivolous issues if
the meeting had proceeded.
In this situation, the Court will not accept
respondent’s invitation to characterize the failure to
allow recording as harmless error. Hence, the Court
will deny respondent’s motion for summary judgment at
this time. As in Keene v. Commissioner, supra at 19,
however, we admonish petitioners that if they persist
in making frivolous and groundless tax protester
arguments in any further proceedings with respect to
this case, rather than raising relevant issues, as
specified in section 6330(c)(2), the Court will
consider granting a future motion for summary judgment.
In such an instance, the Court would also be in a
position to impose a penalty under section 6673(a)(1).
* * *
Petitioners followed this denial with a motion for summary
judgment of their own, filed on September 28, 2004. They alleged
that they were not given notice of the denial of their refund
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