Gwendolyn A. Ewing - Page 21

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          respondent’s administrative record, and that the APA record rule            
          does not apply to section 6015(f) determinations in this Court.11           
          B.   Whether Petitioner Is Entitled to Equitable Relief                     
               Respondent contends that, even if we consider matter raised            
          at trial which was not included in the administrative file,                 
          respondent’s determination that petitioner is not entitled to               
          equitable relief was not an abuse of discretion.  We disagree.              
               The Commissioner announced a list of factors in Rev. Proc.             
          2000-15, sec. 4.03, 2000-1 C.B. 447, 448,12 that the Commissioner           

               11 Our holding herein is consistent with APA provisions                
          relating to judicial determinations made in connection with                 
          agency actions.  Tit. 5 U.S.C. sec. 554 (2000) (“Adjudications”)            
          does not apply to matters subject to trial of the law and the               
          facts de novo, such as our redetermination of a deficiency.                 
          O’Dwyer v. Commissioner, 266 F.2d 575, 580 (4th Cir. 1959), affg.           
          28 T.C. 698 (1957).  Tit. 5 U.S.C. sec. 706(2)(F) (2000)                    
          provides, inter alia, that a “reviewing court” shall “hold                  
          unlawful and set aside agency action, findings and conclusions              
          found to be * * * unwarranted by the facts to the extent that the           
          facts are subject to trial de novo by the reviewing court.”  A              
          matter may be made subject to trial de novo by U.S. Code                    
          provisions applicable to a specific action.  See, e.g., 7 U.S.C.            
          sec. 2023(a)(15) (2000) (suits for judicial review of certain               
          agency actions under the food stamp program are by “a trial de              
          novo * * * in which the court shall determine the validity of the           
          questioned administrative action in issue”).  As held herein, our           
          determinations under sec. 6015(e) are made based on trials de               
          novo.  The legislative history of sec. 6015 does not suggest that           
          Congress contemplated changing the well-established                         
          inapplicability of the APA to Tax Court determinations.  S. Rept.           
          105-174, at 55-60 (1998), 1998-3 C.B. 537, 591-596; H. Conf.                
          Rept. 105-599, at 249-255 (1998), 1998-3 C.B. 747, 1003-1008.               
               12  Respondent’s determination was subject to Rev. Proc.               
          2000-15, 2000-1 C.B. 447, because it was in effect when                     
          respondent’s Appeals officer evaluated petitioner’s request and             
          when respondent issued the notice of determination.  Rev. Proc.             
                                                             (continued...)           





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