holding that taxpayer was entitled to audio record his Collection Due Process hearing
How later courts described this case
- holding that taxpayer was entitled to audio record his Collection Due Process hearing
- remanding to Appeals because it had failed to allow the taxpayer to record his CDP hearing
- “when a taxpayer’s underlying tax liability is not properly at issue in the administrative hearing, we review the Appeals Office’s determination for abuse of discretion”
Written by the judges who cited it.
The opinion
Vasquez, J., concurring: I agree with the majority opinion; however, I write separately to address two additional points.
1. We Are Not Invalidating the Regulations
The majority opinion does not invalidate section 301.6320-1(d)(2) or 301.6330-l(d)(2), Q&A-D6, Proced. & Admin. Regs. Contra J. Swift’s dissenting op. pp. 28-29. In both sections 301.6320-l(d)(2) and 301.6330-l(d)(2), Proced. & Admin. Regs., Q-D6 asks: “How are CDP hearings conducted?” In both sections 301.6320-l(d)(2) and 301.6330-l(d)(2), Proced. & Admin. Regs., A-D6 answers, in pertinent part:
CDP hearings are much like Collection Appeal Program (CAP) hearings in that they are informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer’s representative, to hold a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer’s representative, or some combination thereof. A transcript or recording of any face-to-face meeting or conversation between an Appeals officer or employee and the taxpayer or the taxpayer’s representative is not required. * * *
The “is not required” language contained in the regulations means that the actions described therein are permissible but not mandatory.
The regulations first provide that a face-to-face meeting is not required. This, however, does not prohibit face-to-face meetings — many section 6330 hearings are face-to-face meetings. The regulations simply provide that it is not mandatory that a section 6330 hearing be a face-to-face meeting.
Likewise, the regulations do not prohibit recording or transcription of any face-to-face meeting or conversation; they merely provide that a recording or transcription of the section 6330 hearing is'/ioi required. In other words, recording or transcription of the section 6330 hearing is not mandatory; however, it is permissible.
Furthermore, allowing taxpayers to record the hearing does not require that the Commissioner do so as well. Although the Commissioner also may choose to record the hearing, sec. 7521(a)(2), just because the taxpayer records the hearing this does not require the Commissioner also to record it. 1
If the Secretary had sought to prohibit recordings and transcriptions (and face-to-face meetings for that matter), he could have chosen such phrases as a recording “is not allowed”, “is not permitted”, “is prohibited”, or “shall not be made”. He did not. The regulations instead contain the language “is not required” which permits, but does not mandate, a recording. 2
2. Welcoming a Transcript
Having a transcript of the section 6330 hearing will allow us to perform better the review provided to taxpayers by section 6330(d).
Until now, in order to determine what issues taxpayers raised at the section 6330 hearing, the Court was faced with “he said-she said” situations — needless “credibility contests” between the taxpayer and the Appeals officer. In many cases this contest was not fully developed because the only evidence submitted to determine what issues were raised at the hearing was the notice of determination.
I have tried a number of cases in which it was difficult to determine what issues the taxpayer had raised at the section 6330 hearing. Sometimes it is obvious that the Appeals officer had extreme difficulty understanding what issues the taxpayer raised at the hearing. In those cases, we were left merely with the confusing testimony of the taxpayer and the Appeals officer’s testimony regarding what issues he or she “believed” the taxpayer raised.
Instead of merely having the notice of determination or the testimony of witnesses as evidence of what issues the taxpayer raised at the hearing, now the parties will be able to submit as evidence a transcript of the hearing. In Bourbeau v. Commissioner, T.C. Memo. 2003-117 , the taxpayer and the Commissioner recorded the section 6330 hearing and a court reporter transcribed the hearing. The taxpayer attached a copy of the transcript to his amended petition, and the Commissioner attached a copy of the transcript to his motion for summary judgment. I found the transcript of the hearing to be extremely helpful in rendering a decision in Bourbeau-especially in the context of a pretrial motion. The transcript made it clear what issues the taxpayer in Bourbeau did, and did not, raise at the hearing. See also Struhar v. Commissioner, T.C. Memo. 2003-147 (in which a tape recording of the taxpayer’s section 6330 hearing helped the Court decide what transpired at the hearing). I look forward to such clarity in the future.
Laro, Foley, Marvel, and Goeke, JJ., agree with this concurring opinion. I realize, however, as a practical matter that if a taxpayer records the hearing, the Commissioner will likely record it also.
Other answers contained in sec. 301.6330-1(d)(2), Proced. & Admin. Regs. contain mandatory language. Sec. 301.6330-l(d)(2), A-Dl, Proced. & Admin. Regs. (“The taxpayer is not entitled to another CDP hearing under section 6330 if the additional assessment represents accrual of interest, accrual of penalties, or both.”), A-D5, Proced. & Admin. Regs. (“The taxpayer must sign a written waiver.”), and A-D7, Proced. & Admin. Regs. (“The taxpayer must be offered an opportunity for a hearing at the Appeals office closest to [sic] taxpayer’s residence or, in the case of a business taxpayer, the taxpayer’s principal place of business.”). (Emphasis added.)