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documentation; and order the Government to reimburse petitioner
for all costs incurred in submitting the instant petition.4
On September 20, 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
essentially reprised petitioner’s demands for a recorded hearing
and documentation. The Court on November 17, 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 arguments has
served as grounds for imposition of penalties under
section 6673. However, the case in its current posture
presents 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.
4 The Court notes that to the extent that the petition seeks
reasonable administrative and/or litigation costs pursuant to
sec. 7430, any such claim is premature and will not be further
addressed. See Rule 231.
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