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I shall not specifically address and explain why each of the
various reasons set forth by the majority for its holding under
section 7521(a)(1) is faulty. Suffice it to say that each of
those reasons erroneously is grounded and relies upon the
operation and purpose of section 6330 (and section 6320).
However, I shall address several of the reasons on which the
majority relies for its holding under section 7521(a)(1) because
several of them are not grounded solely in the operation and
purpose of section 6330 (and section 6320).
In support of its conclusion that the phrase “in-person
interview” in section 7521(a)(1) includes a hearing before
Appeals under section 6330(b) (and section 6320(b)), the majority
states:
respondent’s interpretation of section 7521(a)(1) would
lead to the anomalous result of allowing the audio
recording of Examination Division interviews, which are
proceedings that we typically do not review, see
Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324,
327 (1974), but not allowing the recording of section
6330 hearings, which are proceedings that we are
5(...continued)
conference or hearing but applies only to in-person audit
interviews and in-person collection interviews. Congress is
presumed to have had knowledge of that interpretation by the IRS
of the phrase “in-person interview” in sec. 7521 when in 1998 it
added the provisions for a hearing before Appeals in sec. 6330(b)
(and sec. 6320(b)) without mentioning sec. 7521 and by using the
term “hearing” instead of “interview”. See Fla. Natl. Guard v.
Fed. Labor Relations Auth., 699 F.2d 1082, 1087 (11th Cir. 1983)
(“Congress is deemed to know the executive and judicial gloss
given to certain language and thus adopts the existing
interpretation unless it affirmatively acts to change the
meaning.”).
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