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Procedure Act * * * do not apply to the Tax Court.” (Emphasis
added.)), cert. denied 124 S. Ct. 1038 (2004).4
2. The Court’s Specific Statutory Review Provisions
The APA has never governed proceedings in the Court (or in
the Board of Tax Appeals). Ewing v. Commissioner, 122 T.C. at 50
(Thornton, J., concurring). It is well established that “The Tax
Court, rather than being a ‘reviewing court’ within the meaning
of Sec. 10(e) [of the APA] reviewing the ‘record’, is a court in
which the facts are triable de novo”. O’Dwyer v. Commissioner,
266 F.2d 575, 580 (4th Cir. 1959), affg. 28 T.C. 698 (1957). The
“Tax Court is not subject to the Administrative Procedure Act.”
4 Additionally, in numerous instances, we have noted the
taxpayer’s failure to present evidence at trial. This failure to
present evidence supported our conclusion that the Appeals
officer did not abuse his or her discretion. See, e.g., Dorn v.
Commissioner, T.C. Memo. 2003-192 (“Petitioner did not offer
sufficient evidence at his section 6330(b) hearing or before this
Court to show he is entitled to prevail” when petitioner did not
offer any evidence at trial related to the issues raised at his
hearing); Maloney v. Commissioner, T.C. Memo. 2003-143
(“Petitioners did not present any evidence that their excess
withholdings for 1984 exceeded [the stipulated amount of credits
for increased Federal income tax withholdings, including FICA
taxes]”, and “they presented no evidence that they made deposits
or that any FICA taxes were assessed after the applicable period
of limitations had expired”), affd. 94 Fed. Appx. 969 (3d Cir.
2004); Schulman v. Commissioner, T.C. Memo. 2002-129 (settlement
officer did not abuse her discretion where “petitioners presented
no evidence at trial or on brief to otherwise substantiate their
expenses” and where “petitioners did not introduce any evidence
of any meaningful ties to Ozaukee County, other than the relative
proximity of their residence”); Howard v. Commissioner, T.C.
Memo. 2002-81 (“Petitioner also did not present any evidence at
trial or otherwise show any irregularity in the assessment
procedure.”).
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