- 17 - within the meaning of a relevant statute, is entitled to judicial review thereof.” In full, APA section 703 provides: The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement. [Emphasis added.] It seems to me that the underscored language fits a section 6330(d)(1) appeal exactly. If, indeed, a section 6330(b) hearing is a prerequisite to a section 6330(c)(3) determination, then, by all means, we should hold the determination to be unlawful and set it aside (or take other appropriate action). If we are going to set the determination aside, we should do so in the manner prescribed by Congress (in enacting the APA), and not by disclaiming the jurisdiction to do so. C. Conclusion Notwithstanding the failure of respondent’s Appeals officer to offer a taxpayer a hearing before making a section 6330(c)(3) determination, such determination is valid, in the sense that we have jurisdiction under section 6330(d)(1) to review thePage: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011