Joseph D. and Wanda S. Lunsford - Page 38




                                       - 38 -                                         
          The “delay” was created by the Appeals officer’s failure to follow          
          the section 6330(b)(1) mandate to hold a hearing.  Moreover, in a           
          case where a taxpayer maintains a proceeding in the Court primarily         
          for delay, we are authorized to impose a penalty under section              
          6673(a)(1).                                                                 
               Although the majority state that Meyer was decided “in the             
          nascent stages of our jurisprudence”, majority op. p. 10, there are         
          no new experiences or newly ascertained facts that would warrant            
          revisiting the jurisdictional issue in Meyer.  See Burnet v.                
          Commissioner, 285 U.S. 393, 412 (1932).  Meyer was decided less             
          than 1 year ago, yet an indeterminate number of case dispositions           
          (i.e., by way of settlement and orders) have relied on it.  The             
          Court’s flip-flopping creates unnecessary and unwarranted                   
          instability in the law.                                                     
               In sum, the determination is the end product of the hearing            
          process.  Either there can be no determination without a hearing or         
          any purported determination is invalid.  The Court simply does not          
          have jurisdiction.                                                          
               CHIECHI, LARO, VASQUEZ, and MARVEL, JJ., agree with this               
          dissenting opinion.                                                         














Page:  Previous  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  Next

Last modified: May 25, 2011