concurring: I agree with the majority that section 7521(a)(1) entitles a taxpayer to make an audio recording of (“to record”) any oral interview constituting part (or all) of the hearing required by section 6330(b). I write separately to explain why it is within our authority to enforce that entitlement and why, in some cases, we should not exercise that authority.
With certain restrictions, and subject to certain conditions, not here relevant, section 7521(a)(1) makes it the duty of any officer or employee of the Internal Revenue Service to allow a taxpayer to record any in-person interview relating to the determination or collection of any tax. Although section 7521(a)(1) establishes a duty, and a corresponding right, it provides no sanction for violation of that duty or procedure for enforcement of that right. And while the Supreme Court has said: “There is no presumption or general rule that for every duty imposed upon * * * the Government * * * there must exist some corollary punitive sanction for departures or omissions, even if negligent”, United States v. Montalvo-Murillo, 495 U.S. 711, 717 (1990), section 706 of the Administrative Procedure Act (the APA), 5 U.S.C. secs. 551-559, 701-706 (2000) (hereafter, sections of which are cited as APA “sec. _”) provides, in pertinent part, that a court reviewing an agency adjudication (which a determination made under section 6330(c)(3) is1) “shall * * * hold unlawful and set aside agency action * * * found to be * * * without observance of procedure required by law”. We thus have our authority for refusing to sustain a determination made under section 6330 when the Appeals officer has refused to allow the taxpayer to record an in-person interview.
APA sec. 706 concludes, however: “In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.” (Emphasis added.) The “rule of prejudicial error” (otherwise the doctrine of harmless error), as applied to an administrative action, provides that the reviewing court shall disregard procedural errors unless the complaining party was prejudiced thereby. See the discussion of apa sec. 706 and harmless error in Nestor v. Commissioner, 118 T.C. 162, 173 (2002) (Halpern, J., concurring). In this proceeding, petitioner did not proceed with his section 6330 hearing after the Appeals Officer refused him permission to record it, and respondent’s sole ground for summary judgment is the absolute inapplicability of section 7521(a)(1) to a section 6330 hearing. Respondent asked that, if we reject his argument (which we do), we remand the case so that petitioner could be accorded a hearing that he could record. For that reason, we need not determine whether the Appeals Officer’s initial refusal to allow recording is harmless error.
In Kemper v. Commissioner, T.C. Memo. 2003-195, decided this day, the taxpayer husband was denied the right to record his meeting with the Appeals Office but attended anyway. Judge Chiechi acknowledges that here (in Keene) we hold that section 7521(a) requires the Appeals Office to allow a taxpayer to record a section 6330 hearing, yet she concludes that it is unnecessary, and would be unproductive, to remand her case for another, recorded hearing. She relies on Lunsford v. Commissioner, 117 T.C. 183 (2001), in which, it appears to me, we concluded that the Appeals officer did not err by refusing to consider meritless arguments. Undoubtedly (given our holding in this case), the Appeals Office in Kemper did err in not permitting the taxpayer husband to record his meeting. Nevertheless, the burden is on the party seeking judicial review of an agency action to demonstrate prejudice from any error. DSE, Inc. v. United States, 169 F.3d 21, 31 (D.C. Cir. 1999). Since Judge Chiechi finds that the taxpayers in Kemper advance nothing but frivolous arguments and groundless claims, I fail to see how they are prejudiced by the Appeals Office’s error in failing to allow the taxpayer husband to record his meeting. I would reach the same result in Kemper as Judge Chiechi, but I would arrive there by a different path.
Gale and Marvel, JJ., agree with this concurring opinion.See Lunsford v. Commissioner, 117 T.C. 159, 170-171 (2001) (Halpern, J., concurring).