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sec. 3, Q&A-6, 2000-2 C.B. at 406. The revenue procedure
specifically prohibits ex parte discussions of the “originating
function’s perception of the demeanor or credibility of the
taxpayer or the taxpayer’s representative” during the course of
the preliminary review of a newly assigned case.13 Rev. Proc.
2000-43, sec. 3, Q&A-5, 2000-2 C.B. at 405-406.
In the instant case, the memorandum faxed by Advisor Gordon
to Settlement Officer O’Shea on January 30, 2002, runs afoul of
Rev. Proc. 2000-43, sec. 3, Q&A-5, 2000-2 C.B. at 405-406. The
memorandum was not ministerial, administrative, or procedural in
nature. By questioning the credibility and motives of
petitioner’s counsel in the bankruptcy proceedings, the
memorandum may have had the effect of damaging petitioner’s
credibility in the administrative proceedings before Settlement
Officer O’Shea, who neither informed petitioner of the
communications with Advisor Gordon nor provided petitioner with
the opportunity to participate in the ex parte communication.
13Rev. Proc. 2000-43, sec. 3, Q&A-5, 2000-2 C.B. 404, 405-
406, expressly applies to communications with the “originating
function”. The IRS Insolvency Unit does not appear to be an
originating function for purposes of the revenue procedure. See
Rev. Proc. 2000-43, sec. 3, Q&A-20, 2000-2 C.B. at 408. However,
Rev. Proc. 2000-43, sec. 3, Q&A-6, 2000-2 C.B. at 406, provides
that the ex parte communications prohibition also applies to
Appeals consideration of cases that originated in the Collection
function. Such cases that originate in the Collection function
include collection due process appeals. Id. Consequently, the
ex parte communications prohibition applies to the instant
collection due process appeal.
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Last modified: May 25, 2011