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The Commissioner claims that this means the taxpayer must
request a face-to-face hearing in writing, at which point the
case would be transferred to the Appeals Office closest to the
taxpayer’s principal place of business. We addressed this very
issue in Parker v. Commissioner, T.C. Memo. 2004-226, where we
held that a written CDP hearing request was itself a request for
a face-to-face meeting in the nearest Appeals Office. We
stressed that any contrary rule would turn Form 12153 (the
official IRS CDP-hearing-request form) into a “trap for the
unwary” since there is nothing to “[inform] taxpayers of their
right * * * to request a hearing at an Appeals Office.” Id.
Under Parker, Wells impliedly requested a face-to-face CDP
hearing for Industrial when he filled out and returned Form
12153. Since Industrial never subsequently waived its right to a
hearing at the closest Appeals Office, the Commissioner erred as
a matter of law, and so also abused his discretion, in sending
Industrial’s case to Oklahoma City rather than to the Appeals
Office closest to Santa Monica.6
6 As Wells persuasively argued, this error might well not be
harmless. Wells was looking to hire outside counsel, but the
time and expense of moving counsel between California and
Oklahoma made it prohibitively costly. Even if Wells represented
Industrial himself, he has a hearing problem that makes telephone
conversations difficult--he therefore requires a face-to-face
hearing to effectively represent Industrial. And whether or not
the error is harmless, it is an error; and procedural flaws
should be fixed on a remand for a new hearing. Kerner v.
Celebrezze, 340 F.2d 736, 740 (2d Cir. 1965).
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Last modified: November 10, 2007