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In this connection, it is important to keep in mind that the
majority’s holding under section 7521(a)(1) applies not only to
Appeals hearings held pursuant to section 6330(b) (and section
6320(b)) but also extends to all hearings and conferences before
Appeals in deficiency and other contexts. The phrase “in-person
interview” in section 7521 cannot be read to apply only to
hearings before Appeals under section 6330(b) (and section
6320(b)). That phrase must apply to all hearings or conferences
before Appeals, or to no such hearings and conferences. That is
because: (1) There was no right to a section 6330 hearing (or a
section 6320 hearing) in 1988 when Congress enacted section 7521
into the Code; and (2) we held in Davis v. Commissioner, 115 T.C.
at 41, that “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”.
It is a cardinal rule of statutory construction that, when
Congress made section 6330(b) (and section 6320(b)) part of the
Code in 1998, it is presumed to have been aware that it used the
phrase “in-person interview” in section 7521. If Congress had
intended for the hearing before Appeals under section 6330(b)
(and section 6320(b)) to constitute an “in-person interview”
under section 7521, it would have used that phrase in section
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