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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
interviews.
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