- 31 - 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.,Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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