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documentary evidence indicated that a hearing had not been
offered or held. As the trial judge, I was particularly
concerned about whether section 6330 authorized respondent to
issue a determination without first holding a hearing. Now I am
troubled by the majority’s total disregard of the unambiguous
hearing requirement of section 6330(b)(1).
1. Section 6330(b)(1) Unambiguously Requires a Hearing
The majority state that “We do not construe the instant
appeal as being predicated on allegations that respondent failed
to offer petitioners a hearing per se”. Majority op. pp. 10-11.
I do not know what the words “per se” at the end of the foregoing
sentence are intended to convey, but I do know that respondent’s
failure to provide petitioners a hearing is a per se abuse of
discretion.
Despite the way the majority “construe the instant appeal”,
petitioners filed Form 12153; requested in their petition that
“this case be remanded to the Appeals Office” to “Hold a
meaningful due process hearing as required by law”; and
reiterated this request at trial when petitioners’ counsel
stated: “I do not believe they’ve been afforded proper due
process * * *, and I believe they should be allowed to have a
hearing.” The majority, however, do “not believe that it is
either necessary or productive to remand this case to IRS Appeals
to consider petitioners’ arguments.” Majority op. pp. 11-12
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