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HALPERN, J., concurring: I agree with the majority that
section 7521(a)(1) entitles a taxpayer to make an audio recording
of (“to record”) any oral interview constituting part (or all) of
the hearing required by section 6330(b). I write separately to
explain why it is within our authority to enforce that
entitlement and why, in some cases, we should not exercise that
authority.
With certain restrictions, and subject to certain
conditions, not here relevant, section 7521(a)(1) makes it the
duty of any officer or employee of the Internal Revenue Service
to allow a taxpayer to record any in-person interview relating to
the determination or collection of any tax. Although section
7521(a)(1) establishes a duty, and a corresponding right, it
provides no sanction for violation of that duty or procedure for
enforcement of that right. And while the Supreme Court has said:
“There is no presumption or general rule that for every duty
imposed upon * * * the Government * * * there must exist some
corollary punitive sanction for departures or omissions, even if
negligent”, United States v. Montalvo-Murillo, 495 U.S. 711, 717
(1990), section 706 of the Administrative Procedure Act (the
APA), 5 U.S.C. secs. 551–559, 701-706 (2000) (hereafter, sections
of which are cited as APA “sec. _”) provides, in pertinent part,
that a court reviewing an agency adjudication (which a
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