Curtis B. Keene - Page 34

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               SWIFT, J., dissenting:  I agree with the Lunsford treatment            
          of the taxpayers’ frivolous arguments that is reflected in the              
          Kemper opinion being released simultaneously herewith.  Kemper v.           
          Commissioner, T.C. Memo. 2003-195.  In Kemper, we conclude,                 
          because of the frivolous nature of the taxpayers’ underlying                
          arguments, that the Court need not address the taxpayers’                   
          arguments regarding the recording under section 7521 of                     
          collection due process (CDP) Appeals hearings.  The same approach           
          should be utilized herein to dispose of Keene’s underlying                  
          frivolous arguments to the collection action proposed by                    
               In addition to the grounds set forth herein in Judge                   
          Chiechi’s dissenting opinion, as the basis for my dissent I                 
          respectfully add the following.                                             

          The Regulations                                                             
               Q&A-D6 of both sections 301.6320-1(d)(2) and 301.6330-                 
          1(d)(2), Proced. & Admin. Regs., provides that in the context of            
          CDP Appeals hearings the IRS is not required to record “any”                
          taxpayer conversation with an Appeals officer.  In appropriate              
          cases, the IRS may choose to do so and may permit taxpayers to do           
          so, but, under the regulations, the IRS may not be required in              
          “any” case to record a CDP Appeals hearing, nor is the IRS                  

               1    Under Lunsford v. Commissioner, 117 T.C. 183, 188-189             
          (2001), generally frivolous CDP cases can and should be dealt               
          with summarily by the courts.                                               

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