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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, because the conference was terminated when
petitioner refused to turn off his recorder, no hearing
was ever held. Hence, there still exists a possibility
that petitioner might have raised one or more
nonfrivolous issues if the meeting had proceeded.
In this situation, the Court declines 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
petitioner that if he persists 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 may 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).
This case was called from the calendar of the trial session
of the Court in Las Vegas, Nevada, on December 6, 2004, and a
trial was held the following day. At the outset, the Court
cautioned petitioner to be cognizant of our November 17, 2004,
order, explaining:
But I have already ruled in this order that the
Appeals Officer did deny you your right to a hearing,
which you had a right to record. The Court has
addressed that matter and we have determined that the
Respondent, the Internal Revenue Service, was wrong in
not allowing you to record your hearing.
However, we have also determined that if you don’t
have--if taxpayers, and not you, but if a taxpayer who
wants to record a hearing has only frivolous issues
which have no merit, and which this court and other
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