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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.
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