- 11 - 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...)Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: November 10, 2007