Michael E. Nestor - Page 27




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               LARO, J., concurring in result:  The majority holds that               
          “respondent’s determination to proceed with collection of the tax           
          liabilities assessed against petitioner for those [1992-1997]               
          years was not an abuse of discretion.”  Maj. op. p. 10.  On the             
          basis of this Court’s opinion in Lunsford v. Commissioner,                  
          117 T.C. 183 (2001) (Lunsford II), a decision with which I                  
          dissented and continue to disagree, but for which I shall                   
          respectfully follow as the view of this Court, I agree with the             
          majority’s holding.1  As was true in Lunsford II, petitioner has            
          failed to advance in this proceeding any bona fide argument that            
          makes it “either necessary or productive to remand this case to             
          IRS Appeals to consider”.  Id. at 189.   A holding for respondent           
          is therefore appropriate.                                                   
               I also write to clarify my understanding of the Court’s                
          rejection of petitioner’s argument that the Appeals officer                 


               1 I note in passing, however, that Lunsford II appears to              
          have been sapped of some of its vitality by the Treasury                    
          Department’s recent release of final regulations under sec. 6330.           
          The majority in Lunsford II did not require the Office of Appeals           
          (Appeals) to conduct a face-to-face collection due process (CDP)            
          hearing with the taxpayers even though the taxpayers had alleged            
          in their petition that they wanted such a face-to-face hearing              
          and that the absence of a face-to-face hearing deprived them of             
          their right to present their case.  Lunsford v. Commissioner,               
          117 T.C. 183, 191 (2001) (Laro, J., dissenting).  Whereas the               
          final regulations under sec. 6330 observe that a CDP hearing need           
          not be held face-to-face, the regulations indicate that the                 
          taxpayer may demand that a CDP hearing be scheduled face-to-face.           
          The regulations mandate that a taxpayer who requests a face-to-             
          face CDP hearing “must be offered an opportunity for a hearing at           
          the Appeals office closest to the taxpayer’s residence or, in the           
          case of a business taxpayer, the taxpayer’s principal place of              
          business.”  Sec. 301.6330-1(d)(2), Q&A-D6 and D7, Proced. &                 
          Admin. Regs.                                                                



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