- 10 - place prior to our opinion in Keene v. Commissioner, supra; 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 closely 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 letter scheduling the hearing was sent on July 30, 2003, the aborted hearing was held on September 11, 2003, and the notices of determination were issued on January 21, 2004. Although these dates are nearly a month, approximately 2 months, and more 6 months, respectively, after the opinion in Keene v. Commissioner, supra, petitioners were not afforded an opportunity for a recorded conference. Further, because the requested face-to-face hearing was not held, there still exists a possibility that petitioners might have raised one or more nonfrivolous issues if the meeting had proceeded. In this situation, the Court will not accept respondent’s invitation to characterize the failure to allow recording as harmless error. Hence, the Court will deny respondent’s motion for summary judgment at this time. As in Keene v. Commissioner, supra at 19, however, we admonish petitioners that if they persist in making frivolous and groundless tax protester arguments in any further proceedings with respect to this case, rather than raising relevant issues, as specified in section 6330(c)(2), the Court will consider granting a future motion for summary judgment. In such an instance, the Court would also be in a position to impose a penalty under section 6673(a)(1). * * * Petitioners followed this denial with a motion for summary judgment of their own, filed on September 28, 2004. They alleged that they were not given notice of the denial of their refundPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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