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required to permit taxpayers to do so. Procedure and
Administrative regulations sections 301.6320-1(d)(2) and
301.6330-1(d)(2) provide identically as follows:
A-D6. The formal hearing procedures required under the
Administrative Procedure Act, 5 U.S.C. 551 et seq., do not
apply to CDP hearings. CDP hearings are much like
Collection Appeal Program (CAP) hearings in that they are
informal in nature and do not require the Appeals officer or
employee and the taxpayer, or the taxpayer’s representative,
to hold a face-to-face meeting. A CDP hearing may, but is
not required to, consist of a face-to-face meeting, one or
more written or oral communications between an Appeals
officer or employee and the taxpayer or the taxpayer’s
representative, or some combination thereof. A transcript
or recording of any face-to-face meeting or conversation
between an Appeals officer or employee and the taxpayer or
the taxpayer’s representative is not required. The taxpayer
or the taxpayer’s representative does not have the right to
subpoena and examine witnesses at a CDP hearing.
I interpret the above regulations broadly to provide a rule
that the recording of CDP Appeals hearings may not be required
regardless of whom it is that physically is to provide the
recording equipment (the IRS or the taxpayer) and regardless of
whom it is that technically is to make the recording (the IRS or
the taxpayer).
Contrary to the regulations as I read them, Keene holds in
the affirmative, majority op. p. 17, that the IRS was required to
allow Keene to record his CDP Appeals hearing and orders a new
hearing be scheduled for Keene that is to be recorded.
This opinion effectively invalidates the above regulations.
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