Curtis B. Keene - Page 32

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          because it is the Appeals Office.1                                          
               When Congress enacted sections 6320 and 6330 in 1998,                  
          section 7521(a), permitting taxpayers to record any in-person               
          interviews relating to the determination or collection of any               
          tax, was already 10 years old.  Admittedly, Congress could have             
          enacted sections 6320 and 6330 with the assumption that the                 
          rights granted in section 7521, as those rights apply to section            
          6320 and 6330 Appeals hearings, would be governed by Notice 89-             
          51.   However, it seems to me more likely that Congress, if it              
          considered this issue, would have assumed that the right to                 

               1 While the Service Litigation Guideline Memorandum GL-17              
          (GL-17) is more explicit in stating that it is the Service’s                
          position "that section 7521 does not apply to an administrative             
          appeals conference", it is a litigating position not controlling            
          on this Court.  The authority cited in GL-17 for excluding                  
          Appeals conferences from sec. 7521 is Notice 89-51.  As noted               
          above, I find that authority unpersuasive.                                  
               GL-17 also makes a distinction between those third-party               
          interviews where a witness is compelled to testify by legal                 
          process, such as a summons or subpoena, vis-a-vis those                     
          situations where the witness testifies voluntarily.  The                    
          memorandum notes that pursuant to the Administrative Procedures             
          Act (APA), 5 U.S.C. secs. 551-559, 701-706 (2000), if the                   
          testimony of the witness was compelled by legal process,                    
          recording should be allowed since that witness would under APA              
          sec. 555(c) be entitled, at his or her cost, to a copy of the               
          official transcript of his or her testimony.                                
               The compelled versus voluntary distinction, however, is                
          irrelevant to taxpayer interviews which are governed by sec.                
          7521.  The result under that section should not be affected by              
          whether or not the taxpayer interview was compelled by legal                
          process or was voluntary.  Sec. 7521, unlike APA sec. 555(c),               
          does not differentiate between voluntary and compelled taxpayer             

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