Curtis B. Keene - Page 21

                                       - 21 -                                         
          determination made under section 6330(c)(3) is1) “shall * * *               
          hold unlawful and set aside agency action * * * found to be * * *           
          without observance of procedure required by law”.  We thus have             
          our authority for refusing to sustain a determination made under            
          section 6330 when the Appeals Officer has refused to allow the              
          taxpayer to record an in-person interview.                                  
               APA sec. 706 concludes, however:  “In making the foregoing             
          determinations, the court shall review the whole record or those            
          parts of it cited by a party, and due account shall be taken of             
          the rule of prejudicial error.”  (Emphasis added.)  The “rule of            
          prejudicial error” (otherwise the doctrine of harmless error), as           
          applied to an administrative action, provides that the reviewing            
          court shall disregard procedural errors unless the complaining              
          party was prejudiced thereby.  See the discussion of APA sec. 706           
          and harmless error in Nestor v. Commissioner, 118 T.C. 162, 173             
          (2002) (Halpern, J., concurring).  In this proceeding, petitioner           
          did not proceed with his section 6330 hearing after the Appeals             
          Officer refused him permission to record it, and respondent’s               
          sole ground for summary judgment is the absolute inapplicability            
          of section 7521(a)(1) to a section 6330 hearing.  Respondent                
          asked that, if we reject his argument (which we do), we remand              
          the case so that petitioner could be accorded a hearing that he             

               1  See Lunsford v. Commissioner, 117 T.C. 159, 170-171                 
          (2001) (Halpern, J., concurring).                                           

Page:  Previous  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  Next

Last modified: May 25, 2011