10.72—Hearings.
(a) In general—
(1) Presiding officer.
An Administrative Law
Judge will preside at the hearing on a complaint
filed under § 10.60 for the sanction of a
practitioner, employer, firm or other entity, or
appraiser.
(2) Time for hearing.
Absent a
determination by the Administrative Law Judge
that, in the interest of justice, a hearing must
be held at a later time, the Administrative Law
Judge should, on notice sufficient to allow proper
preparation, schedule the hearing to occur no
later than 180 days after the time for filing the
answer.
(3) Procedural requirements.
(i)
Hearings will be stenographically recorded and
transcribed and the testimony of witnesses will be
taken under oath or affirmation.
(iv)
An evidentiary hearing must be held in all
proceedings prior to the issuance of a decision by
the Administrative Law Judge unless—
(E)
The Administrative Law Judge issues a
decision under § 10.68(d) or rules on another
motion that disposes of the case prior to the
hearing.
(b) Cross-examination.
A party is
entitled to present his or her case or defense by
oral or documentary evidence, to submit rebuttal
evidence, and to conduct cross-examination, in the
presence of the Administrative Law Judge, as may
be required for a full and true disclosure of the
facts. This paragraph (b) does not limit a party
from presenting evidence contained within a
deposition when the Administrative Law Judge
determines that the deposition has been obtained
in compliance with the rules of this subpart
D.
(c) Prehearing memorandum.
Unless
otherwise ordered by the Administrative Law Judge,
each party shall file, and serve on the opposing
party or the opposing party's representative,
prior to any hearing, a prehearing memorandum
containing—
(2)
A list of proposed witnesses, including a
synopsis of their expected testimony, or a
statement that no witnesses will be called;
(3)
Identification of any proposed expert
witnesses, including a synopsis of their expected
testimony and a copy of any report prepared by the
expert or at his or her direction; and
(d) Publicity—
(1)
In
general. All reports and decisions of the
Secretary of the Treasury, or delegate, including
any reports and decisions of the Administrative
Law Judge, under this subpart D are, subject to
the protective measures in paragraph (d)(4) of
this section, public and open to inspection within
30 days after the agency's decision becomes
final.
(2)
(d)
3]Request for additional
publicity. The Administrative Law Judge may
grant a request by a practitioner or appraiser
that all the pleadings and evidence of the
disciplinary proceeding be made available for
inspection where the parties stipulate in advance
to adopt the protective measures in paragraph
(d)(4) of this section.
(3)
Returns and return
information —(i) Disclosure to
practitioner or appraiser. Pursuant to section
6103(l)(4) of the Internal Revenue Code, the
Secretary of the Treasury, or delegate, may
disclose returns and return information to any
practitioner or appraiser, or to the authorized
representative of the practitioner or appraiser,
whose rights are or may be affected by an
administrative action or proceeding under this
subpart D, but solely for use in the action or
proceeding and only to the extent that the
Secretary of the Treasury, or delegate, determines
that the returns or return information are or may
be relevant and material to the action or
proceeding.
(ii)
Disclosure to officers and
employees of the Department of the Treasury.
Pursuant to section 6103(l)(4)(B) of the Internal
Revenue Code, the Secretary of the Treasury, or
delegate, may disclose returns and return
information to officers and employees of the
Department of the Treasury for use in any action
or proceeding under this subpart D, to the extent
necessary to advance or protect the interests of
the United States.
(iii)
Use of returns and return
information. Recipients of returns and return
information under this paragraph (d)(3) may use
the returns or return information solely in the
action or proceeding, or in preparation for the
action or proceeding, with respect to which the
disclosure was made.
(iv)
Procedures for disclosure of
returns and return information. When providing
returns or return information to the practitioner
or appraiser, or authorized representative, the
Secretary of the Treasury, or delegate, will—
(C)
Notify the practitioner or appraiser, or
authorized representative, of the restrictions on
the use and disclosure of the returns and return
information, the applicable damages remedy under
section 7431 of the Internal Revenue Code, and
that unauthorized disclosure of information
provided by the Internal Revenue Service under
this paragraph (d)(3) is also a violation of this
part.
(4) Protective measures—
(i) Mandatory protective order.
If
redaction of names, addresses,
and other identifying information of third party
taxpayers may still permit indirect identification
of any third party taxpayer, the Administrative
Law Judge will issue a protective order to ensure
that the identifying information is available to
the parties and the Administrative Law Judge for
purposes of the proceeding, but is not disclosed
to, or open to inspection by, the public.
(ii) Authorized orders.
(A)
Upon
motion by a party or any other affected person,
and for good cause shown, the Administrative Law
Judge may make any order which justice requires to
protect any person in the event disclosure of
information is prohibited by law, privileged,
confidential, or sensitive in some other way,
including, but not limited to, one or more of the
following—
(1) That disclosure of
information be made only on specified terms and
conditions, including a designation of the time or
place;
(2) That a trade secret or other
information not be disclosed, or be disclosed only
in a designated way.
(iii) Denials.
If a motion for a
protective order is denied in whole or in part,
the Administrative Law Judge may, on such terms or
conditions as the Administrative Law Judge deems
just, order any party or person to comply with, or
respond in accordance with, the procedure
involved.
(iv)
Public inspection of
documents. The Secretary of the Treasury, or
delegate, shall ensure that all names, addresses
or other identifying details of third party
taxpayers are redacted and replaced with the code
assigned to the corresponding taxpayer in all
documents prior to public inspection of such
documents.
(e) Location.
The location of the
hearing will be determined by the agreement of the
parties with the approval of the Administrative
Law Judge, but, in the absence of such agreement
and approval, the hearing will be held in
Washington, D.C.
(f) Failure to appear.
If either
party to the proceeding fails to appear at the
hearing, after notice of the proceeding has been
sent to him or her, the party will be deemed to
have waived the right to a hearing and the
Administrative Law Judge may make his or her
decision against the absent party by default.