- 47 - 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.Page: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
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