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THORNTON, J., concurring: I agree with the majority and
write separately to address certain points regarding the
application of the Administrative Procedure Act (APA), 5 U.S.C.
secs. 551-559, 701-706 (2000), to Tax Court proceedings and our
application of the abuse of discretion standard in cases for
spousal relief under section 6015.
Since its enactment in 1946, the APA has never governed
proceedings in this Court (or in its predecessor, the Board of
Tax Appeals). See, e.g., O’Dwyer v. Commissioner, 266 F.2d 575,
580 (4th Cir. 1959) (“The Tax Court * * * is a court in which the
facts are triable de novo * * * . We agree that the Tax Court is
not subject to the Administrative Procedure Act.”), affg. 28 T.C.
698 (1957). This long-established practice comports with the
provisions of the APA and its history.
As a statute of general application, the APA does not
supersede specific statutory provisions for judicial review. APA
section 704 provides: “Agency action made reviewable by statute
and final agency action for which there is no other adequate
remedy in a court are subject to judicial review.” 5 U.S.C. sec.
704 (2000). APA section 703 governs the form and venue of
judicial review under the APA. See 5 U.S.C. sec. 703 (2000).
The legislative history of APA section 703 makes clear that where
there is a special statutory review proceeding relevant to the
subject matter, that special statutory review “shall not be
disturbed”. S. Comm. on the Judiciary, 79th Cong., 1st Sess.,
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