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Rev. Proc. 2000-43, Q&A-21, 2000-2 C.B. at 408, defines the
phrase “opportunity to participate” as follows:
It means that the taxpayer/representative will be given
a reasonable opportunity to attend a meeting or be a
participant in a conference call between Appeals and
the originating function when the strengths and
weaknesses of issues or positions in the taxpayer’s
case are discussed. The taxpayer/representative will
be notified of a scheduled meeting or conference call
and invited to participate. * * *
Because petitioner was not given an opportunity to participate in
a meeting or conference call with Advisor Gordon, we conclude
that petitioner did not have an opportunity to participate in the
ex parte communication for purposes of Rev. Proc. 2000-43, supra.
Based on the foregoing, we conclude that the communication
between Advisor Gordon and Settlement Officer O’Shea constituted
a prohibited ex parte communication that may have damaged
petitioner’s credibility before Settlement Officer O’Shea and
Appeals Officer Kaplan.14 Consequently, we hold that Appeals
Officer Kaplan abused his discretion and shall remand the instant
case to respondent’s Appeals Office for a new section 6330
hearing with an independent Appeals officer who has received no
communication relating to the credibility of petitioner or
14The record reveals that the memorandum from Advisor Gordon
to Attorney Forbes became a part of respondent’s administrative
file and was ultimately reviewed by Appeals Officer Kaplan. The
record further reveals that Appeals Officer Kaplan did not
provide petitioner with a copy of the memorandum.
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