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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 administrative proceedings took 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 final letter denying recording was sent
on July 21, 2003, the aborted hearing was held on July
24, 2003, and the notice of determination was issued on
July 31, 2003. Although these dates are subsequent to
the opinion in Keene v. Commissioner, supra, petitioner
was 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 petitioner 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 petitioner that if she 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).
The following day, October 5, 2004, the Court received from
petitioner her response to respondent’s motion. Therein,
petitioner principally reiterated her contentions that, on
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