- 50 -
establishing that the judicial review provisions of the APA apply
to informal, as well as formal, adjudications, e.g., Fla. Power &
Light Co. v. Lorion, supra at 744, the continuing relevance of
the APA discussion in O’Dwyer is dubious at best.9
3. Applicability of the APA to Section 6015(f) Cases
Given the legislative history discussed above (and the
questionable relevance of the O’Dwyer case), the majority’s
premise that the judicial review provisions of the APA do not
apply to deficiency cases in this Court cannot stand.
Furthermore, APA section 559 would seem to preclude the
possibility that such provisions do not apply to our relatively
9 In his concurring opinion, Judge Thornton supplements his
reliance on the O’Dwyer case with statutory analysis. He implies
that the import of APA sec. 704 (which provides in part that
“agency action for which there is no other adequate remedy in a
court are subject to judicial review”) is that, where there is an
existing “adequate remedy in court”, the APA is inapplicable.
Concurring op. pp. 31-32. However, as Judge Thornton himself
recognizes, the Supreme Court has characterized the import of the
above-quoted portion of APA sec. 704 as follows: “When Congress
enacted the APA to provide a general authorization for review of
agency action in the district courts, it did not intend * * * to
duplicate the previously established special statutory procedures
relating to specific agencies.” Bowen v. Mass., 487 U.S. 879,
903 (1988). Thus, for example, a taxpayer who disagrees with a
deficiency notice does not have a separate cause of action in
Federal district court under the APA. It does not follow that
the APA is “inapplicable” to deficiency cases (see discussion of
APA sec. 706(2)(F) above). Similarly, in Beall v. United States,
336 F.3d 419 (5th Cir. 2003), another case cited by Judge
Thornton which refers to the Bowen discussion of APA sec. 704,
the court merely made the technical point that the taxpayer’s
interest abatement claim was cognizable as a refund suit under
sec. 7422 rather than as a separate cause of action under the
APA. Id. at 427 n.9.
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