Curtis B. Keene - Page 40

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          before Appeals outside the context of section 6330(b) (and                  
          section 6320(b)).  That is because:  (1) Section 6330(b) (and               
          section 6320(b)) was not even part of the Internal Revenue Code             
          (Code) when Congress enacted section 7521(a)(1) into the Code in            
          1988; and (2) we concluded in Davis v. Commissioner, 115 T.C. 35,           
          41 (2000), that the type of hearing by Appeals that Congress                
          contemplated when it enacted section 6330(b) is “the type of                
          informal administrative Appeals hearing that has been                       
          historically conducted by Appeals”, which is the administrative             
          office of last resort for taxpayers.2                                       

               2I disagree with the suggestion in footnote 6 of the                   
          majority opinion that Davis v. Commissioner, 115 T.C. 35 (2000),            
          addressed only the procedure involving the conduct of a hearing             
          before Appeals under sec. 6330(b) (and sec. 6320(b)).  Although             
          the ultimate holding in Davis was that a hearing before Appeals             
          pursuant to sec. 6330 does not include the right to subpoena                
          witnesses, the following passage makes it clear that Davis                  
          focused not only on the procedure but also on the nature and                
          function of Appeals:                                                        
                    When Congress enacted section 6330 and required                   
               that taxpayers be given an opportunity to seek a pre-                  
               levy hearing with Appeals, Congress was fully aware of                 
               the existing nature and function of Appeals.  Nothing                  
               in section 6330 or the legislative history suggests                    
               that Congress intended to alter the nature of an                       
               Appeals hearing so as to compel the attendance or                      
               examination of witnesses. * * * The references in                      
               section 6330 to a hearing by Appeals indicate that                     
               Congress contemplated the type of informal                             
               administrative Appeals hearing that has been                           
               historically conducted by Appeals and prescribed by                    
               section 601.106(c), Statement of Procedural Rules.                     
          Davis v. Commissioner, supra at 41.                                         
                                                             (continued...)           





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