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for the previously filed lien, recommending that the government
“secure any and all interest for all assets owned by the
Corporation,” and strongly suggesting the terms under which an
offer-in-compromise would be accepted.
This needs to stop. Congress wanted to give taxpayers an
opportunity to appeal their case to an IRS employee who would
take a fresh look at the facts. Ex parte contacts not only
undermine the impartiality of the officer hearing the appeal, but
are especially pernicious because they are so hard to detect.
Wells only discovered the cover letter sent to Talbott because,
as a lawyer, he was savvy enough to ferret out its existence from
a reference in the Appeals officer’s case activity report.
The Commissioner contends that even if the cover letter were
deemed a prohibited ex parte communication, it shouldn’t matter
since Talbott testified that the statements didn’t influence him.
This amounts to arguing that the cover letter was a harmless
error, and the Commissioner is right that harmless error is
generally no reason to remand an administrative agency’s
determination for what would be a pointless reconsideration.
See, e.g., Keene v. Commissioner, 121 T.C. 8, 21 (2003) (Halpern,
J., concurring); Kemper v. Commissioner, T.C. Memo. 2003-195.
The Commissioner made a similar argument in Moore, stating that
independent grounds would support an identical determination and
therefore any prejudice from the ex parte communication was
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Last modified: November 10, 2007