- 40 -
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...)
Page: Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 NextLast modified: May 25, 2011