Gwendolyn A. Ewing - Page 7

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          only the administrative record (the record rule) in making our              
          determination in this case.3  See Camp v. Pitts, 411 U.S. 138,              
          142 (1973); United States v. Carlo Bianchi & Co., 373 U.S. 709,             
          715 (1963).  We disagree.  As discussed next, our holding herein            
          is based on more than 75 years of well-established interpretative           
          history and practice before this Court.                                     




               3 The Commissioner has recently taken the contrary position            
          in three U.S. Courts of Appeals cases.  Specifically, the                   
          Commissioner contended that the Tax Court did not err in                    
          collection cases arising under sec. 6330 in allowing the                    
          introduction of evidence that was not part of the administrative            
          record.  See the Commissioner’s briefs in Holliday v.                       
          Commissioner, 57 Fed. Appx. 774 (9th Cir. 2003), affg. T.C. Memo.           
          2002-67; Lindsey v. Commissioner, 56 Fed. Appx. 802 (9th Cir.               
          2003), affg. T.C. Memo. 2002-87; and Chase v. Commissioner, 55              
          Fed. Appx. 717 (5th Cir. 2002), affg. T.C. Memo. 2002-93.  In the           
          Commissioner’s brief in Holliday v. Commissioner, supra, the                
          Commissioner argued that the:                                               
               taxpayer labors under the faulty assumption that                       
               judicial review of CDP hearings is governed by the                     
               “record review” requirements of the Administrative                     
               Procedure Act, * * *  Although judicial review of the                  
               merits of agency actions pursuant to the APA is                        
               generally limited to the administrative record upon                    
               which the challenged action was based, see, e.g.,                      
               Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-                
               44 (1985); Camp v. Pitts, 411 U.S. 138, 142 (1973),                    
               taxpayer’s petition in Tax Court was founded upon                      
               I.R.C. �6330(d)(1), not the judicial review provisions                 
               of the APA. * * *  Section 6330 does not impose any                    
               requirement that the Office of Appeals create a record                 
               or that judicial review by the Tax Court be limited to                 
               the facts or documents presented at the CDP hearing.                   
               These three Courts of Appeals opinions are unpublished and             
          are not binding precedent.  In each of those opinions, the Court            
          of Appeals upheld the Commissioner’s position.                              




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