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spectrum of alleged failures to comply with statutory
requirements. Respondent filed a response denying the
allegations in all material respects.
By notice issued on July 2, 2004, the instant case was set
for trial at the session beginning on December 6, 2004, in Las
Vegas, Nevada. Respondent then filed a motion for summary
judgment and to impose a section 6673 penalty on July 22, 2004.
Petitioners filed an objection to respondent’s motion on
August 17, 2004, wherein they principally complained about
respondent’s various characterizations of positions taken by
petitioners as “frivolous”, “groundless”, or “merit less” [sic].
They also took issue with respondent’s assertion that failure to
allow recording of the hearing was “harmless error”. The Court
on September 15, 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, the issues raised by petitioners
during the administrative process have been repeatedly
rejected by this and other courts. Moreover,
maintenance of these arguments 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 administrative proceedings took
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