- 56 -
types of contentions and arguments, so that he can make an audio
recording of that hearing. Such a result is justified, according
to the majority, because the IRS deprived petitioner of his
procedural right under section 7521(a)(1) to make an audio
recording of the hearing that Appeals previously offered to him.
However, in Lunsford v. Commissioner, 117 T.C. 183 (2001), the
Court (1) did not care whether the IRS had provided the taxpayers
with their substantive right to a hearing under section 6330(b)
and (2) refused to grant their request for relief that the Court
remand the case to Appeals for a hearing. The Court justified
such a result in Lunsford because “the only arguments that
petitioners presented to this Court were based on legal
propositions which we have previously rejected”, Lunsford v.
Commissioner, supra at 189, and consequently such a hearing was
not “necessary or productive”, id.
I believe that the result in Lunsford and the result in the
instant case are irreconcilable. In an effort to reconcile such
results, the majority points out that there is a difference
between Lunsford and the instant case in that the petition in
Lunsford alleged groundless legal arguments on which the
taxpayers in Lunsford based their claim for relief for another
hearing, whereas in the instant case the sole allegation in the
petition relates to a procedural defect; i.e., respondent’s
failure to allow petitioner to make an audio recording of his
Page: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 NextLast modified: May 25, 2011