dissenting: In holding that section 7521(a)(1) requires respondent to allow petitioner to make an audio recording of his section 6330(b) Appeals Office hearing, the majority fails to apply the rules of statutory construction on which the majority claims to rely. In remanding this case to Appeals in order to allow petitioner to have a hearing that he may audio record, the majority has rewarded the delaying tactics of petitioner, who has a long history of raising frivolous and/or groundless reasons why he claims he owes no Federal income tax (tax),1 has rewarded his noncompliance with Rule 331, and has caused an unwarranted delay in the instant proceedings. I dissent from all the actions of the majority.
In order to resolve the issue whether section 7521(a)(1) requires respondent to allow petitioner to make an audio recording of his section 6330(b) Appeals Office hearing, it is necessary to determine whether the phrase “in-person interview” used in that section includes a hearing before Appeals under section 6330(b) (and section 6320(b)). In order to resolve that question, it first is necessary to determine whether section 7521(a)(1) requires the Internal Revenue Service (IRS) to allow a taxpayer to make an audio recording of a hearing or conference before Appeals outside the context of section 6330(b) (and section 6320(b)). That is because: (1) Section 6330(b) (and section 6320(b)) was not even part of the Internal Revenue Code (Code) when Congress enacted section 7521(a)(1) into the Code in 1988; and (2) we concluded in Davis v. Commissioner, 115 T.C. 35, 41 (2000), that the type of hearing by Appeals that Congress contemplated when it enacted section 6330(b) is “the type of informal administrative Appeals hearing that has been historically conducted by Appeals”, which is the administrative office of last resort for taxpayers.2
Congress enacted all the provisions of section 7521, including section 7521(a)(1), as part of the Technical and Miscellaneous Revenue Act of 1988 (tamra), Pub. L. 100-647, 102 Stat. 3342. Congress prescribed in section 7521 several procedures involving taxpayer interviews.3 All of those procedures relate to the same taxpayer interviews; i.e., the same “in-person interviews”.
It was not until 1998, 10 years after Congress made section 7521 part of the Code, that Congress enacted section 6330 relating to proposed levies (and section 6320 relating to liens) as part of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat. 685, in order to give taxpayers certain rights, including the right to a hearing before the Appeals Office, sec. 6330(b) (relating to proposed levies); sec. 6320(b) (relating to liens), and the right to Court review of a determination made by that office under section 6330(c), sec. 6330(d)(1). Consequently, in order to analyze properly the meaning of the phrase “in-person interview” in section 7521(a)(1), it is necessary to undertake such an analysis in the context of hearings or conferences historically conducted before Appeals, which were extant in 1988 when Congress enacted section 7521 as part of tamba and which we held in Davis v. Commissioner, supra, were the types of informal administrative Appeals hearings that Congress contemplated when it enacted section 6330(b). It is inappropriate to analyze, as the majority does, the meaning of the phrase “in-person interview” in the context of reasons grounded in the operation and purpose of section 6330 (and section 6320), which Congress did not make part of the Code until 10 years after it enacted section 7521.
The majority begins its analysis of the meaning of the phrase “in-person interview” in section 7521(a)(1) by stating:
Neither section 7521(a)(1) nor the legislative history directly and clearly defines or otherwise describes the term “in-person interview”. Where a term is not defined in the statute, it is appropriate to accord the term its “ordinary meaning”. Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 833 (9th Cir. 1996). And when there is no indication that Congress intended a specific legal meaning for the term, courts may look to sources such as dictionaries for a definition. Muscarello v. United States, 524 U.S. 125, 127-132 (1998). See also Huntsberry v. Commissioner, 83 T.C. 742, 747-748 (1984), in which the Court stated that “where a statute is clear on its face, * * * we would require unequivocal evidence of legislative purpose before construing the statute so as to override the plain meaning of the words used therein.” [Majority op. pp. 14-15; fn. ref. omitted.]
The majority fails to apply the rules of statutory construction on which it claims to rely when, in determining the meaning of the phrase “in-person interview” in section 7521(a)(1), it turns to the dictionary definition of the term “interview”. Although I agree with the majority that Congress did not “directly * * * define” the phrase “in-person interview” in section 7521(a)(1) or any other provision in section 7521 or in the legislative history, I disagree with the majority that neither the statute nor the legislative history “clearly * * * otherwise describes” that phrase. Section 7521 itself and the legislative history of that section clearly describe what Congress intended when it used the phrase “in-person interview”.
In determining what Congress had in mind when it used the phrase “in-person interview” in section 7521(a)(1), the majority improperly focuses only on section 7521(a)(1) for guidance. In determining what Congress intended, section 7521(a)(1) may not be read in a vacuum. It must be examined in the context of the entire statute (i.e., section 7521) that Congress enacted in 1988 for the purpose of prescribing certain procedures that it made applicable to all “in-person interviews”. If the majority had undertaken such an examination, it would have become clear to the majority what Congress meant when it used the phrase “in-person interview” in section 7521.
Section 7521(b)(1) provides:
SEC. 7521. PROCEDURES INVOLVING TAXPAYER INTERVIEWS.
(b) Safeguards.—
(1) Explanations of processes. — An officer or employee of the Internal Revenue Service shall before or at an initial interview provide to the taxpayer—
(A) in the case of an in-person interview with the taxpayer relating to the determination of any tax, an explanation of the audit process and the taxpayer’s rights under such process, or
(B) in the case of an in-person interview with the taxpayer relating to the collection of any tax, an explanation of the collection process and the taxpayer’s rights under such process.
Section 7521(b)(1) thus clearly describes what Congress intended when it used the phrase “in-person interview” in section 7521.
Not only section 7521 itself, but the legislative history of that section also is instructive in determining what Congress had in mind when it used the phrase “in-person interview” in section 7521(a)(1). The conference report relating to section 7521, H. Conf. Rept. 100-1104, at 212-214 (1988), 1988-3 C.B. 473, 702-704 (conference report), provides in pertinent part:
Prior to initial in-person audit interviews, the IRS must explain to taxpayers the audit process and taxpayers’ rights under that process. In addition, prior to initial in-person collection interviews, the IRS must explain the collection process and taxpayers’ rights under that process. For this purpose, routine telephone conversations initiated by either the taxpayer or the IRS are not considered initial interviews. A written statement handed to the taxpayer at an audit or collection interview or within a short time before the interview is sufficient. * * * [H. Conf. Rept. 100-1104, at 213 (1988), 1988-3 C.B. 473, 703.]
Section 7521(b)(1) and the conference report make clear that, when Congress used the phrase “in-person interview” in section 7521, it did not have in mind either the dictionary definition of the term “interview” on which the majority improperly relies or the historically voluntary and informal hearings or conferences before Appeals. The descriptions by Congress in section 7521 itself and its legislative history leave no doubt that what Congress meant when it used the phrase “in-person interview” in section 7521, including section 7521(a)(1), is an in-person audit interview and an in-person collection interview, which take place during the audit process and the collection process, respectively, and the function of which is to investigate and determine facts relating to the determination and the collection of any tax. Thus, it makes perfect sense that Congress decided in section 7521 to allow taxpayers, sec. 7521(a)(1), as well as the IRS, sec. 7521(a)(2), to record such types of interviews. That is because in-person audit interviews and in-person collection interviews are interviews initiated by the IRS that taxpayers are under some compulsion to attend and that the IRS conducts for the purpose of gathering information to use in the determination of and the collection of tax, respectively; i.e., interviews of taxpayers initiated by the examination division and by the collection division, respectively, and therefore not infrequently involuntary, which are investigative or inquisitorial in nature and which can be enforced by the issuance of an administrative summons.
In contrast to the in-person audit interviews and the in-person collection interviews that Congress intended section 7521 to address, hearings or conferences before Appeals extant at the time in 1988 Congress made section 7521 part of the Code historically were, and remain, conferences initiated by taxpayers and therefore voluntary, which are conducted in an informal setting in order to review and consider actions taken by the examination division or the collection division of the IRS and to discuss the facts and the law relating to such actions for the purpose of settling or resolving those matters without resort to litigation. See secs. 601.106, 601.203, Statement of Procedural Rules. An Appeals officer does not have the same investigative authority that a revenue agent involved in an examination matter or a revenue officer involved in a collection matter has. Indeed, where alleged new facts are presented at Appeals that require authentication or verification, an Appeals officer may ask the examination division or the collection division of the IRS to authenticate and/or to investigate those alleged new facts.4 That is because the function of the examination division and the collection division, respectively, is to investigate and determine facts relating to the determination and the collection of any tax.
Thus, it makes perfect sense that, when Congress enacted section 7521(a)(1) and the other “procedures involving TAXPAYER interviews” set forth in section 7521, it did not intend to include hearings or conferences historically held before Appeals for the purpose of attempting to settle or otherwise resolve actions taken by the examination division or the collection division of the IRS without resort to litigation. And it makes no sense that Congress would have required that section 7521(a)(1) and the other procedures in section 7521 apply to such hearings or conferences. Pursuant to the majority’s holding that the phrase “in-person interview” includes an Appeals hearing, not only taxpayers, see sec. 7521(a)(1), but also Appeals officers, see sec. 7521(a)(2), have the right to make an audio recording of Appeals hearings. I believe that such audio recordings will inhibit unnecessarily and inappropriately the give-and-take that typically takes place at such hearings and conferences in order to attempt to negotiate settlements or otherwise resolve actions taken by the examination division or the collection division of the irs without resort to litigation.
In this connection, it is important to keep in mind that the majority’s holding under section 7521(a)(1) applies not only to Appeals hearings held pursuant to section 6330(b) (and section 6320(b)) but also extends to all hearings and conferences before Appeals in deficiency and other contexts. The phrase “in-person interview” in section 7521 cannot be read to apply only to hearings before Appeals under section 6330(b) (and section 6320(b)). That phrase must apply to all hearings or conferences before Appeals, or to no such hearings and conferences. That is because: (1) There was no right to a section 6330 hearing (or a section 6320 hearing) in 1988 when Congress enacted section 7521 into the Code; and (2) we held in Davis v. Commissioner, 115 T.C. at 41, that “The references in section 6330 to a hearing by Appeals indicate that Congress contemplated the type of informal administrative Appeals hearing that has been historically conducted by Appeals”.
It is a cardinal rule of statutory construction that, when Congress made section 6330(b) (and section 6320(b)) part of the Code in 1998, it is presumed to have been aware that it used the phrase “in-person interview” in section 7521. If Congress had intended for the hearing before Appeals under section 6330(b) (and section 6320(b)) to constitute an “in-person interview” under section 7521, it would have used that phrase in section 6330(b) (and section 6320(b)), or at least referred to section 7521. It did neither.5
I shall not specifically address and explain why each of the various reasons set forth by the majority for its holding under section 7521(a)(1) is faulty. Suffice it to say that each of those reasons erroneously is grounded and relies upon the operation and purpose of section 6330 (and section 6320). However, I shall address several of the reasons on which the majority relies for its holding under section 7521(a)(1) because several of them are not grounded solely in the operation and purpose of section 6330 (and section 6320).
In support of its conclusion that the phrase “in-person interview” in section 7521(a)(1) includes a hearing before Appeals under section 6330(b) (and section 6320(b)), the majority states:
respondent’s interpretation of section 7521(a)(1) would lead to the anomalous result of allowing the audio recording of Examination Division interviews, which are proceedings that we typically do not review, see Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974), but not allowing the recording of section 6330 hearings, which are proceedings that we are statutorily charged with reviewing, see sec. 6330(d)(1). [Majority op. p. 17.]
The foregoing statement is incorrect. We are no more charged with reviewing “section 6330 hearings” than we are charged with reviewing “Examination Division interviews”. In the lien and levy proceeding context, we are charged with reviewing a determination of Appeals made under section 6330(c)(3). See sec. 6330(d)(1). That determination is set forth in the notice of determination that Appeals issues to each taxpayer who has complied with the requirements of section 6330 (and/or section 6320). In the deficiency context, we are charged with reviewing a notice of deficiency, see sec. 6213(a); we are not charged with reviewing “Examination Division interviews”. The case cited by the majority, Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974), merely holds that, in reviewing a notice of deficiency, we typically do not go behind that notice.6
As another reason for concluding that the phrase “in-person interview” in section 7521(a)(1) includes a hearing before the Appeals Office under section 6330(b) (and section 6320(b)), the majority states:
respondent’s interpretation of section 7521(a)(1) would complicate judicial review of the determination made by the Appeals Office with respect to the Commissioner’s proposed levy or filing of the notice of Federal tax lien. For example, 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. * * * Having a transcript of the administrative hearing would certainly facilitate that review. * * * [Majority op. pp. 17-18.]
The foregoing rationale for holding that section 7521(a)(1) requires the IRS to permit a taxpayer to make an audio recording of an Appeals hearing under section 6330(b) (and section 6320(b)) is not sound. Although having a transcript of the administrative hearing under section 6330(b) (and section 6320(b)) might “facilitate” in an appropriate case review of the Appeals’ determination made under section 6330(c)(3), it is a non sequitur to conclude that, therefore, section 7521(a)(1) requires that a taxpayer have the right to make an audio recording of a hearing under section 6330(b) (and section 6320(b)). If the majority had concluded, as I believe it should have, that the phrase “in-person interview” in section 7521(a)(1) does not include a hearing before Appeals, the Court would be at liberty in any appropriate case under section 6330 (or section 6320), in order to “facilitate” our review of Appeals’s determination under section 6330(d)(1), to remand the case in order to have a transcript of the section 6330 hearing (or section 6320 hearing). See Mesa Oil, Inc. v. United States, 86 AFTR 2d 2000-7312, 2001-1 USTC par. 50130 (D. Colo. 2000).
The majority also states as a ground for concluding that section 7521(a)(1) requires that a taxpayer have the right to make an audio recording of a hearing before Appeals that
when reviewing for abuse of discretion, we generally consider “only arguments, issues, and other matter that were raised at the collection hearing or otherwise brought to the attention of the Appeals Office”. * * * Having a transcript would eliminate a possible dispute between the parties concerning the scope of the issues that were raised by the taxpayer in the administrative hearing. Moreover, not having a transcript may contravene the intent of Congress in providing for a fair and impartial administrative hearing and may have a negative impact on this Court’s review of the Appeals Office determination. [Majority op. p. 18.]
The foregoing rationale is another unsound basis for the majority’s holding under section 7521(a)(1). As discussed above, Congress could not have had in mind the hearing that it decided to afford to taxpayers in 1998 under section 6330(b) (and section 6320(b)) when it made section 7521 part of the Code in 1988. Moreover, as also discussed above, the desirability in certain circumstances of having a transcript of a section 6330 hearing (and a section 6320 hearing) does not answer the question whether, and does not logically lead to the conclusion that, section 7521 mandates that a taxpayer have the right to make an audio recording of a hearing before Appeals.
Having held that section 7521(a)(1) requires respondent to allow petitioner to make an audio recording of his section 6330(b) hearing, the majority concludes:
we shall remand this case to respondent’s Appeals Office with direction that petitioner be offered a section 6330 hearing that may be audio recorded pursuant to section 7521(a)(1). * * * [Majority op. p. 19.7]
The result mandated by the majority is that respondent must offer another hearing under section 6330 to petitioner, who, according to the majority, has a long history of advancing tax-protester types of contentions and arguments, so that he can make an audio recording of that hearing. Such a result is justified, according to the majority, because the IRS deprived petitioner of his procedural right under section 7521(a)(1) to make an audio recording of the hearing that Appeals previously offered to him. However, in Lunsford v. Commissioner, 117 T.C. 183 (2001), the Court (1) did not care whether the IRS had provided the taxpayers with their substantive right to a hearing under section 6330(b) and (2) refused to grant their request for relief that the Court remand the case to Appeals for a hearing. The Court justified such a result in Lunsford because “the only arguments that petitioners presented to this Court were based on legal propositions which we have previously rejected”, Lunsford v. Commissioner, supra at 189, and consequently such a hearing was not “necessary or productive”, id.
I believe that the result in Lunsford and the result in the instant case are irreconcilable. In an effort to reconcile such results, the majority points out that there is a difference between Lunsford and the instant case in that the petition in Lunsford alleged groundless legal arguments on which the taxpayers in Lunsford based their claim for relief for another hearing, whereas in the instant case the sole allegation in the petition relates to a procedural defect; i.e., respondent’s failure to allow petitioner to make an audio recording of his Appeals hearing. The difference on which the majority relies to support its remand in the instant case is a distinction without significance. We have previously reminded taxpayers who institute proposed levy (and lien) cases in the Court that Rule 331(b)(4) requires a petition for review of a determination under section 6330 to contain clear and concise assignments of “each and every error which the petitioner alleges to have been committed in the levy determination”, Goza v. Commissioner, 114 T.C. 176, 183 (2000), and that that Rule provides that “any issue not raised in the assignments of error shall be deemed to be conceded”, id. See Lunsford v. Commissioner, supra at 190.
By remanding the instant case to Appeals for a hearing that petitioner may audio record, the majority is allowing petitioner to raise issues that he did not raise or plead, as required by Rule 331. The only complaint that petitioner has about his rights under section 6330, as set forth in the petition in the instant case, is that he was not allowed to make an audio recording of his Appeals Office hearing under section 6330(b). Certainly, petitioner does not intend to argue at the Appeals hearing ordered by the majority that Appeals erred in refusing to permit him to make an audio recording of the hearing that Appeals previously offered to him. So what will petitioner argue at the hearing mandated by the majority? Given petitioner’s track record of advancing frivolous and/or groundless contentions and arguments as to why he does not owe any tax, it is reasonable to presume that he will be advancing at that hearing those same types of frivolous and/or groundless contentions and arguments.
In Lunsford v. Commissioner, supra, the Court did not give the taxpayers the benefit of the doubt that they would abandon their frivoloiis and/or groundless arguments if they had the opportunity for another hearing. Nonetheless, the majority in the instant case is giving petitioner the benefit of the doubt by requiring Appeals to hold a hearing that petitioner may audio record because the majority presumes that, despite petitioner’s long history of advancing tax-protester types of contentions and arguments, he might decide to advance at such a hearing contentions and arguments that have some basis in the facts and the law. I do not believe that the majority should have given the benefit of the doubt to petitioner. The majority should have required petitioner to amend his petition or otherwise advise the Court what contentions and arguments he intends to make at an Appeals hearing so that the Court could have determined whether such contentions and arguments are frivolous and/or groundless. Only if the Court were to determine that such contentions and arguments have a basis in the facts and the law should the majority have remanded the matter to Appeals for a hearing that the majority has held section 7521(a)(1) requires petitioner be given the opportunity to audio record. By not requiring before remanding this matter to Appeals that petitioner amend his petition or otherwise inform the Court what contentions and arguments he intends to make at an Appeals hearing, the majority has rewarded petitioner’s delaying tactics and his noncompliance with Rule 331 and has caused an unwarranted delay in the instant proceedings.
Cohen and Swift, JJ., agree with this dissenting opinion.As an illustration of petitioner’s past conduct, see Keene v. Commissioner, T.C. Memo. 2002-277, where the Court granted summary judgment and imposed a penalty under sec. 6673(a)(1) in the amount of $5,000.
I disagree with the suggestion in note 6 of the majority opinion that Davis v. Commissioner, 115 T.C. 35 (2000), addressed only the procedure involving the conduct of a hearing before Appeals under sec. 6330(b) (and sec. 6320(b)). Although the ultimate holding in Davis was that a hearing before Appeals pursuant to sec. 6330 does not include the right to subpoena witnesses, the following passage makes it clear that Davis focused not only on the procedure but also on the nature and function of Appeals:
When Congress enacted section 6330 and required that taxpayers be given an opportunity to seek a pre-levy hearing with Appeals, Congress was fully aware of the existing nature and function of Appeals. Nothing in section 6330 or the legislative history suggests that Congress intended to alter the nature of an Appeals hearing so as to compel the attendance or examination of witnesses. * * * The references in section 6330 to a hearing by Appeals indicate that Congress contemplated the type of informal administrative Appeals hearing that has been historically conducted by Appeals and prescribed by section 601.106(c), Statement of Procedural Rules. * * * [Davis v. Commissioner, supra at 41.]
Assuming arguendo that the majority were correct in suggesting that Davis addressed only the procedure involving the conduct of an Appeals hearing under sec. 6330(b) (and sec. 6320(b)), the right to make an audio recording at an “in-person interview” provided in sec. 7521(a)(1) relates only to a procedure involving the conduct of such an “in-person interview”. As discussed below, Congress enacted sec. 7521(a)(1) into the Code as one of several procedures involving “in-person interviews” set forth in sec. 7521. Indeed, sec. 7521 is entitled “PROCEDURES INVOLVING TAXPAYER INTERVIEWS”. See H. Conf. Rept. 100-1104, at 212 (1988), 1988-3 C.B. 473, 702.
Sec. 7521 sets forth procedures regarding “Recording of Interviews”, sec. 7521(a), “Safeguards” and “Right of Consultation” with respect to such interviews, sec. 7521(b)(1) and (2), and “Representatives Holding Power of Attorney” who appear at such interviews, sec. 7521(c).
Sec. 601.106(6(5) and (6), Statement of Procedural Rules, provides in pertinent part:
(6 Conference and practice requirements. Practice and conference procedure before Appeals is governed by Treasury Department Circular 230 as amended (31 CFR Part 10), and the requirements of Subpart E of this part. In addition to such rules but not in modification of them, the following rules are also applicable to practice before Appeals:
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(5) Rule V. In order to bring an unagreed income, profits, estate, gift, or Chapter 41, 42, 43, or 44 tax case in prestatutory notice status, an employment or excise tax case, a penalty case, an Employee Plans and Exempt Organization case, a termination of taxable year assessment case, a jeopardy assessment case, or an offer in compromise before the Appeals office, the taxpayer or the taxpayer’s representative should first request Appeals consideration and, when required, file with the district office (including the Foreign Operations District) or service center a written protest setting forth specifically the reasons for the refusal to accept the findings. If the protest includes a statement of facts upon which the taxpayer relies, such statement should be declared to be true under the penalties of perjury. The protest and any new facts, law, or arguments presented therewith will be reviewed by the receiving office for the purpose of deciding whether further development or action is required prior to referring the case to Appeals.
(6) Rule VI. A taxpayer cannot withhold evidence from the district director of internal revenue and expect to introduce it for the first time before Appeals, at a conference in nondocketed status, without being subject to having the case returned to the district director for reconsideration. Where newly discovered evidence is submitted for the first time to Appeals, in a case pending in nondocketed status, that office, in the reasonable exercise of its discretion, may transmit same to the district director for his or her consideration and comment.
At a minimum, if Congress had intended for the Appeals hearing under sec. 6330(b) (and sec. 6320(b)) to constitute an “in-person interview” for purposes of sec. 7521, Congress would have so stated in the legislative history of sec. 6330(b) (and sec. 6320(b)). It did not.
The fact that from 1989 until May 2002 IRS Appeals exercised its discretionary authority and permitted audio recordings of hearings before it does not mean that the IRS’s position was that sec. 7521(a)(1) required such audio recordings. That was made clear in Notice 89-51, 1989-1 C.B. 691 (Notice 89-51), and Litigation Guideline Memorandum GL-17.
Notice 89-51 states in part:
For purposes of section 7520 of the Code [later redesignated section 7521], the term “taxpayer interview” means a meeting between an officer or employee of the Examination function, the Employee Plans and Exempt Organization function, or the Collection function of the Service, and a taxpayer or authorized representative, as defined in section 7520(b)(2), when the determination or the collection of any tax is at issue.
Litigation Guideline Memorandum GL-17 provides in part:
It is also our position that section 7521 does not apply to an administrative appeals conference * * *
* * * IRM 8626 does not create any right to make a verbatim recording; it simply states that the Commissioner or his/her delegate has the discretion to allow a recording. * * *
Since 1989 until May 2, 2002, when Appeals, in an unpublished internal memorandum to all Appeals Area Directors, exercised its discretionary authority to end the audio recording of conferences or hearings before Appeals that it had previously allowed, Notice 89-51 and Litigation Guideline Memorandum GL-17 represented the interpretation of the IRS that the phrase “in-person interview” in sec. 7521 does not apply to any Appeals conference or hearing but applies only to in-person audit interviews and in-person collection interviews. Congress is presumed to have had knowledge of that interpretation by the IRS of the phrase “in-person interview” in sec. 7521 when in 1998 it added the provisions for a hearing before Appeals in sec. 6330(b) (and sec. 6320(b)) without mentioning sec. 7521 and by using the term “hearing” instead of “interview”. See Fla. Natl. Guard v. Fed. Labor Relations Auth., 699 F.2d 1082, 1087 (11th Cir. 1983) (“Congress is deemed to know the executive and judicial gloss given to certain language and thus adopts the existing interpretation unless it affirmatively acts to change the meaning.”).
In reviewing a notice of deficiency under sec. 6213, onr standard of review is usually de novo. There are, however, instances in which, in reviewing a notice of deficiency, our standard of review is abuse of discretion (for example, in cases involving a change in accounting method determined by the IRS). Regardless of whether our standard of review in a deficiency case is de novo or abuse of discretion, we typically do not go behind the notice of deficiency. Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974).
In reviewing a notice of determination under sec. 6330, our standard of review is abuse of discretion, unless the validity of the underlying tax liability is properly placed at issue, in which event our standard of review is de novo. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000). Regardless of whether our standard of review in a proposed levy (or lien) case is abuse of discretion or de novo, we typically do not go behind the notice of determination.
In reaching the result to remand for an Appeals hearing that petitioner may audio record, the majority relies on respondent’s acknowledgment that if the Court were to decide the audio recording issue against respondent, the proper action would be to remand the case and allow petitioner to have a hearing that he may audio record. Respondent’s position as to what the Court should do if it were to hold against respondent on the issue presented under sec. 7521(a)(1) is not binding on the Court and does not justify remanding the case to Appeals. The Court has never hesitated in the past, and the majority should not have hesitated in the instant case, to reject the IRS’s (or the taxpayer’s) view of what the proper action should be in the event that the Court were to resolve an issue adversely to that party.