Gwendolyn A. Ewing - Page 35

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          within the meaning of APA section 559.3  See, e.g., Phillips v.             
          Commissioner, 283 U.S. 589, 598, 600 (1931) (stating that in                
          deficiency proceedings before the Board of Tax Appeals, “there is           
          a complete hearing de novo * * *.  The adequacy of the scope of             
          review * * * is now thoroughly established.”); Blair v.                     
          Oesterlein Machine Co., 17 F.2d 663, 665 (D.C. Cir. 1927) (“the             
          Board [of Tax Appeals] is vested with full reviewing jurisdiction           
          over the findings of the Commissioner * * *.  The appellate power           
          includes the authority, not only to review, but to investigate de           
          novo, the matters in controversy between the government and the             
          taxpayer”).4  These de novo trial procedures, which have remained           

               3 When the APA was enacted, this Court had jurisdiction not            
          only to redetermine deficiencies, but also to determine certain             
          overpayments, to redetermine excessive profits on defense                   
          contracts as previously determined by the Secretary of the                  
          Treasury, and to hear claims for refunds of processing taxes; all           
          these matters were reviewed de novo.  See Revenue Act of 1943,              
          ch. 63, sec. 701(e), 58 Stat. 86 (excessive profits); Revenue Act           
          of 1942, ch. 619, secs. 504, 510(b), 56 Stat. 957, 967 (refunds             
          of processing taxes); Revenue Act of 1926, ch. 27, sec. 284(e),             
          44 Stat. 67 (overpayments); Revenue Act of 1924, ch. 234, sec.              
          274, 43 Stat. 297 (deficiencies).                                           
               4 In one of its earliest decisions, the Board of Tax Appeals           
          characterized its scope of review in deficiency proceedings as              
          follows:                                                                    
                    When a taxpayer brings his case before the Board                  
               he proceeds by trial de novo.  The record of the case                  
               made in the Internal Revenue Bureau is not before the                  
               Board except in so far as it may be properly placed in                 
               evidence by the taxpayer or by the Commissioner.  The                  
               Board must decide each case upon the record made at the                
               hearing before it, and, in order that it may properly                  
               do so, the taxpayer must be permitted to fully present                 
                                                             (continued...)           





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