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APA sections 554 through 557 describe a process of formal
adjudication that includes elements of a judicial trial in a
civil proceeding. Among those elements are the right to an
evidentiary hearing, at which the party “is entitled to present
his case or defense by oral or documentary evidence, to submit
rebuttal evidence, and to conduct such cross-examination as may
be required for a full and true disclosure of the facts”. APA
sec. 556(d). APA section 554(a), however, requires an agency to
employ this formal trial-type procedure only in an “adjudication
required by statute to be determined on the record after
opportunity for an agency hearing” (a formal adjudication). No
such requirement for an on-the-record hearing appears in section
6330, and we have, by inference, in Davis v. Commissioner,
115 T.C. 35 (2000), concluded that a determination under section
6330(c)(3) is not a formal adjudication. In Davis, we precluded
the taking of testimony under oath or the compulsory attendance
of witnesses. See id. at 41–42. Those are elements of a formal
adjudication specifically provided for in APA section 556(c)(1)
and (2). In Davis, we inferred correctly that a determination
under section 6330(c)(3) is not a formal adjudication. See
United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 234–238
(1973) (distinguishing between a rule to be made “after hearing”
and the requirement that a rule be made “on the record after
opportunity for an agency hearing”).
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