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Respondent points out that Rev. Proc. 2000-43, sec. 3,
Q&A-10, 2000-2 C.B. at 406, allows Appeals officers to pass on to
respondent’s other employees new information received by an
Appeals officer. Q&A-10, however, addresses new information
“presented by the taxpayer,” not new information obtained by
the Appeals Officer via ex parte communications from other of
respondent’s employees. Respondent misreads Q&A-10.
We recognize that under section 7122(a) respondent is given
broad discretion to consider and to reject offers-in-compromise,
and we defer to respondent’s discretion when it is properly
exercised. Mailman v. Commissioner, 91 T.C. 1079, 1082 (1988).
However, the communications before us clearly constituted
prohibited ex parte communications.
We turn to the appropriate remedy.
In Robert v. United States, 364 F.3d 988 (8th Cir. 2004),
affg. 91 AFTR 2d 2003-602, 2003-1 USTC par. 50,212 (E.D. Mo.
2003), the District Court and the Court of Appeals for the Eighth
Circuit refused to quash administrative third-party summonses
that were issued based on information respondent obtained through
prohibited ex parte communications. The Court of Appeals for the
Eighth Circuit explained that it affirmed the District Court’s
order enforcing summonses because “The Supreme Court has stated
that courts should be slow to erect barriers to enforcement of
[respondent’s] summonses where the summonses are being used to
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