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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
error.
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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