Gwendolyn A. Ewing - Page 47

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          the record rule in cases where APA section 706(2)(A) provides the           
          appropriate standard of review.  See Fla. Power & Light Co. v.              
          Lorion, 470 U.S. 729, 743-744 (1985); Camp v. Pitts, 411 U.S.               
          138, 142 (1973); see also Holy Land Found. for Relief & Dev. v.             
          Ashcroft, 333 F.3d 156, 162 (D.C. Cir. 2003); Beno v. Shalala, 30           
          F.3d 1057, 1073-1074 (9th Cir. 1994).  Conversely, in cases that            
          fall into the de novo category of APA section 706(2)(F), the                
          record rule by its terms does not apply.                                    
               B.  Applicability of the APA                                           
                    1.  The Majority Opinion                                          
               Although, as discussed above, the issue is not necessarily             
          dispositive, we begin by addressing the majority’s conclusion               
          that the judicial review provisions of the APA are inapplicable             
          in this case.  The majority begins with the premise that “[i]t is           
          well established that the APA does not apply to deficiency cases            
          in this Court; that is, cases arising under sections 6213 or 6214           
          in which we may redetermine the taxpayer’s tax liability.”                  
          Majority op. p. 9.  The majority then concludes that it “[finds]            
          no convincing reason to treat our determinations under section              
          6015(f) and section 6213(a) differently for purposes of                     
          applicability of the APA.”  Majority op. p. 10.                             


               5(...continued)                                                        
          to be determined on the record after opportunity for an agency              
          hearing, see APA sec. 554(a)) that is not supported by                      
          substantial evidence.                                                       





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