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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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