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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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