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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These three Courts of Appeals opinions are unpublished and
are not binding precedent.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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