- 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.
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