- 34 -
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
respondent.1
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.
Page: Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 NextLast modified: May 25, 2011