Harold E. Call - Page 5

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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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