Curtis B. Keene - Page 22

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          could record.  For that reason, we need not determine whether the           
          Appeals Officer’s initial refusal to allow recording is harmless            
               In Kemper v. Commissioner, T.C. Memo. 2003-195, decided this           
          day, the taxpayer husband was denied the right to record his                
          meeting with the Appeals Office but attended anyway.  Judge                 
          Chiechi acknowledges that here (in Keene) we hold that section              
          7521(a) requires the Appeals Office to allow a taxpayer to record           
          a section 6330 hearing, yet she concludes that it is unnecessary,           
          and would be unproductive, to remand her case for another,                  
          recorded hearing.  She relies on Lunsford v. Commissioner, 117              
          T.C. 183 (2001), in which, it appears to me, we concluded that              
          the Appeals Officer did not err by refusing to consider meritless           
          arguments.  Undoubtedly (given our holding in this case), the               
          Appeals Office in Kemper did err in not permitting the taxpayer             
          husband to record his meeting.  Nevertheless, the burden is on              
          the party seeking judicial review of an agency action to                    
          demonstrate prejudice from any error.  DSE, Inc. v. United                  
          States, 169 F.3d 21, 31 (D.C. Cir. 1999).  Since Judge Chiechi              
          finds that the taxpayers in Kemper advance nothing but frivolous            
          arguments and groundless claims, I fail to see how they are                 
          prejudiced by the Appeals Office’s error in failing to allow the            
          taxpayer husband to record his meeting.  I would reach the same             
          result in Kemper as Judge Chiechi, but I would arrive there by a            

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