Gwendolyn A. Ewing - Page 31

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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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