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Summary judgment is appropriate where “there is no genuine
issue as to any material fact and * * * a decision may be
rendered as a matter of law.” Rule 121(b), Fla. Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988).1 Respondent’s summary
judgment motion was originally unaccompanied by certified copies
of the Forms 4340 that the Appeals officer referred to during
petitioner’s hearing and on which she relied in making her
determination. However, in a supplemental filing respondent
rectified this omission. Petitioner, in his response, also
attached copies of the February 26, 2001, letters that he
received. Respondent represented at a hearing on this motion
that he does not object to their consideration. The evidence
before respondent is now before the Court.2
In opposing the motion, petitioner does not contest
respondent’s proof that both the hearing and the officer who ran
it were impartial; nor does he contest that the IRS followed its
1 References to “Rules” are to the Tax Court Rules of
Practice and Procedure.
2 We note that the Chief Counsel has taken the position
that the Administrative Procedure Act’s provision for judicial
review of informal adjudication, 5 U.S.C. sec. 706(2)(A)-(D)
(2000) should apply. Office of Chief Counsel Notice CC-2003-016,
at 29 (May 29, 2003). We have not ourselves taken a position on
the merits of that assertion, but that type of review would
likely be easier if a uniform procedure were in place, whenever
the Commissioner moves for summary judgment, to put before a
reviewing court the record (or at least the parts of it on which
either party relies). See James Madison Ltd. ex rel. Hecht v.
Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996).
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Last modified: May 25, 2011