- 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
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