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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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