Gwendolyn A. Ewing - Page 48

                                       - 48 -                                         
                    2.  Applicability of the APA to Deficiency Cases in               
                    This Court                                                        

               We disagree with the majority’s premise that the judicial              
          review provisions of the APA do not apply to ordinary deficiency            
          cases in this Court.  It is undoubtedly true that the record rule           
          does not apply to such cases.  That is not the consequence of an            
          implied exemption from the APA; rather, it is the consequence of            
          the application of APA section 706(2)(F), which, as discussed               
          above, provides that a reviewing court shall set aside agency               
          action that is “unwarranted by the facts to the extent that the             
          facts are subject to trial de novo by the reviewing court.”  Both           
          the House report and the Senate report accompanying the APA point           
          to “tax assessments”, which “may involve a trial of the facts in            
          the Tax Court”, as an example of the type of agency action to               
          which APA section 706(2)(F) applies.  S. Rept. 752, 79th Cong.,             
          1st Sess. 28 (1945); H. Rept. 1980, 79th Cong., 2d Sess. 45                 
          (1946).  Thus, while it may be accurate to say that the enactment           
          of the APA had no practical effect on our scope of review in                
          deficiency cases, the majority’s claim that the APA “does not               
          apply” to such cases is erroneous.6                                         


               6  The distinction is important in terms of context.  Once             
          it is conceded that the Tax Court has never been “exempt” from              
          the APA judicial review provisions, our conclusion that those               
          provisions have practical consequences in relation to our                   
          recently granted jurisdiction to review sec. 6015(f)                        
          adjudications does not seem revolutionary.                                  





Page:  Previous  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  57  Next

Last modified: May 25, 2011