Industrial Investors - Page 11




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          irrelevant.  Moore, supra.  We disagreed with the Commissioner’s            
          reasoning then, and we still disagree now.                                  
               Revenue Procedure 2000-43 prohibits ex parte communications            
          that appear to compromise the Appeals officer:  Actual influence            
          isn’t required, only a reasonable possibility that the prohibited           
          communication may have compromised the Appeals officer’s                    
          impartiality.  See Drake, 125 T.C. at 209-10.  We find that this            
          standard is easily met here:  Our personal observation of                   
          Talbott’s testimony--buttressed by a paper trail that shows an              
          unusual haste to get the hearing over with and rule against                 
          Industrial--compels us to find that as a matter of fact he was              
          influenced by the cover letter, leaving no doubt that his                   
          impartiality was compromised.  We therefore remand the case to              
          the IRS for a new CDP hearing before a different Appeals officer            
          who has not been exposed to the ex parte letter.  Drake, 125 T.C.           
          at 210.4                                                                    

               4 It is not entirely clear that this is the only possible              
          remedy.  Another way to cure an ex parte communication might be             
          to allow the offended party to have an opportunity to review and            
          comment on it before the Appeals officer presiding over the                 
          remand.  This would put Industrial in the same position it would            
          have been in if the revenue officer had incorporated his letter             
          into the initial determination and made it part of the                      
          administrative file.  As we noted in Moore v. Commissioner, T.C.            
          Memo. 2006-171, however, the revenue procedure itself doesn’t               
          address specific administrative remedies.  It also seems to                 
          contemplate oral ex parte communications--for example, meetings             
          or conference calls--and not the sort of written communication              
          that blindsided Industrial.  See Rev. Proc. 2000-43, sec. 3, Q&A-           
          21, 2000-2 C.B. 404, 408.  Since the IRS hasn’t spoken on this              
                                                             (continued...)           





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