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On September 10, 2004, respondent filed a motion for summary
judgment. Petitioner filed a timely response in opposition to
respondent’s motion on October 12, 2004. The response again
essentially repeated petitioner’s demands for a recorded hearing
and documentation. The Court on November 10, 2004, issued an
order denying the motion for summary judgment, ruling as set
forth below:
As respondent correctly notes in the motion for
summary judgment, issues raised by petitioner during
the administrative process and before us have been
repeatedly rejected by this and other courts or are
refuted by the documentary record. Moreover, the Court
observes that maintenance of similar frivolous
arguments, primarily for delay, has served as grounds
for imposition of penalties under section 6673.
However, the case in its current posture does present a
procedural shortcoming.
On July 8, 2003, this Court issued Keene v.
Commissioner, 121 T.C. 8, 19 (2003), in which it was
held that taxpayers are entitled, pursuant to section
7521(a)(1), to audio record section 6330 hearings. The
taxpayer in that case had refused to proceed when
denied the opportunity to record, and we remanded the
case to allow a recorded Appeals hearing. Id. In
contrast, we have distinguished, and declined to
remand, cases where the taxpayer had participated in an
Appeals Office hearing, albeit unrecorded, and where
all issues raised by the taxpayer could be properly
decided from the existing record. E.g., id. at 19, 20;
Frey v. Commissioner, T.C. Memo. 2004-87; Durrenberger
v. Commissioner, T.C. Memo. 2004-44; Brashear v.
Commissioner, T.C. Memo. 2003-196; Kemper v.
Commissioner, T.C. Memo. 2003-195.
The circumstances of the instant case are
analogous to those in Keene v. Commissioner, supra, and
diverge from those where it was determined that remand
was not necessary and would not be productive.
Critically, the notice of determination was issued on
October 7, 2003. Although this date is subsequent to
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