Joseph Giamelli - Page 27




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          6320 and 6330 operate.  Our early caselaw regarding sections 6320           
          and 6330 was based on similarities to tax deficiency proceedings,           
          not on differences.  For example, in Davis v. Commissioner, 115             
          T.C. 35, 41-42 (2000), we concluded that Appeals Office                     
          collection hearings under sections 6320 and 6330 should be                  
          handled in the same manner that traditional Appeals Office                  
          hearings involving tax deficiencies have been handled, as                   
          follows:                                                                    

                    Hearings at the Appeals level have historically                   
               been conducted in an informal setting.  [Citing sec.                   
               601.106(c), Statement of Procedural Rules.]                            
                        *     *     *     *     *     *     *                         
                    When Congress enacted section 6330 and required                   
               that taxpayers be given an opportunity to seek a                       
               pre-levy hearing with Appeals, Congress was fully aware                
               of the existing nature and function of Appeals.                        
               Nothing in section 6330 or the legislative history                     
               suggests that Congress intended to alter the nature of                 
               an Appeals hearing so as to compel the attendance or                   
               examination of witnesses.  When it enacted section                     
               6330, Congress did not provide either Appeals or                       
               taxpayers with statutory authority to subpoena                         
               witnesses.  The references in section 6330 to a hearing                
               by Appeals indicate that Congress contemplated the type                
               of informal administrative Appeals hearing that has                    
               been historically conducted by Appeals and prescribed                  
               by section 601.106(c), Statement of Procedural Rules.                  
               The nature of the administrative Appeals process does                  
               not include the taking of testimony under oath or the                  
               compulsory attendance of witnesses.  We therefore hold                 
               that a hearing before Appeals pursuant to section 6330                 
               does not include the right to subpoena witnesses.                      
               [Citations and fn. ref. omitted.]                                      
               The regulation on which the majority opinion relies under              
          section 6320 is identical to the regulation under section 6330,             






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