Gwendolyn A. Ewing - Page 55

                                       - 55 -                                         
         Id. at 675 (quoting H. Rept. 94-1609 at 3 (1976)).  Thus,                    
         Congress has used the phrase “de novo determination” in the                  
         context of other (non-tax) trial court proceedings to signify an             
         independent determination (i.e., without deference to the result             
         reached by the initial decisionmaker) by the trial court that is             
         nonetheless based on the record developed by the initial                     
         decisionmaker.11                                                             
              D.  The “Abuse of Discretion” Standard of Review in Tax                 
         Court Proceedings                                                            
                   1.  The Majority Opinion                                           
              The majority acknowledges that the standard of review in                
         this case is abuse of discretion.  As discussed above at I.A.3.,             
         regardless of the applicability of the APA, the abuse of                     
         discretion standard traditionally has been associated with the               
         application of the record rule.  The majority therefore is forced            


               11  In his concurring opinion, supra p. 34, Judge Thornton             
          concludes that the following statutory language renders our pre-            
          APA de novo trial procedures applicable to sec. 6015(f) cases:              
          “This subchapter, [and] chapter 7 * * * do not limit or repeal              
          additional requirements imposed by statute or otherwise                     
          recognized by law.”  APA sec. 559.  We agree that the enactment             
          of the APA in 1946 did not preempt this Court’s existing de novo            
          trial procedures.  See supra note 6 and accompanying text; see              
          also supra note 9.  We do not agree that our jurisdiction to                
          review sec. 6015(f) adjudications, created in 1998, can be                  
          stitched to our pre-APA deficiency jurisdiction for these                   
          purposes.  Specifically, we emphatically do not agree that sec.             
          6015 is “part and parcel” of the “specific statutory framework              
          for reviewing deficiency determinations of the Internal Revenue             
          Service.”  Concurring op. supra p. 34; see infra discussion at              
          I.D.2.                                                                      





Page:  Previous  45  46  47  48  49  50  51  52  53  54  55  56  57  58  59  60  61  62  63  64  Next

Last modified: May 25, 2011