Gwendolyn A. Ewing - Page 42

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               HALPERN and HOLMES, JJ., dissenting:  This case presents the           
          issue of whether one of the guiding principles of administrative            
          law–-the record rule–-governs our review of a decision by the               
          Commissioner to deny relief under section 6015(f).  The majority            
          concludes that it does not.  That conclusion is potentially of              
          great significance because it will likely affect the manner in              
          which we decide other types of cases arising under our expanding            
          nondeficiency jurisdiction.1  Because the majority’s conclusion             
          is contrary to settled principles of administrative law regarding           
          the proper scope of judicial review, and because it misapplies              
          the abuse of discretion standard of review, we respectfully                 
          dissent.                                                                    
               Before proceeding, it is important to distinguish between              
          two concepts--“scope of review” and “standard of review”--that              
          delimit judicial review of agency action.  As succinctly stated             
          by the U.S. Court of Appeals for the Tenth Circuit:                         
               The scope of judicial review refers merely to the                      
               evidence the reviewing court will examine in reviewing                 
               an agency decision.  The standard of judicial review                   
               refers to how the reviewing court will examine that                    
               evidence.                                                              

          Franklin Sav. Association v. Office of Thrift Supervision, 934              
          F.2d 1127, 1136 (10th Cir. 1991) (emphasis added).  The majority            
          concludes that the appropriate scope of review in section 6015(f)           


               1  See, e.g., secs. 6404(h) (review of interest abatement              
          denials) and 6330(d) (review of collection due process                      
          determinations).  This “review” jurisdiction has become an                  
          increasingly large part of our caseload over the last decade.               



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