Crevenne C. and Barbara A. Carrillo - Page 10

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               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 refund               






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