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that evidence, and on the basis of such evidence, should have
determined not to proceed with collection. Respondent’s failure
to do so under these circumstances is an abuse of discretion.
Regarding Magana v. Commissioner, 118 T.C. 488 (2002), I
question whether that case has any application to the instant
case. The majority opinion properly distinguishes Magana on the
grounds that petitioner is not raising a new issue. See majority
op. p. 29. However, even if Magana could be read to exclude
relevant and admissible evidence not raised during an Appeals
Office hearing, it would have no application to the instant case.
During the Appeals Office hearing in the instant case, petitioner
attempted to present evidence relevant to his position, and
respondent refused to consider it. If the Tax Court had no
authority to develop a factual record in the instant case, there
would not have been a sufficient record to determine whether
respondent had abused his discretion. This is important because
there are no formal procedures available for Appeals Office
hearings. See sec. 301.6330-1(d)(1), Q&A-D6, Proced. & Admin.
Regs. As this Court has stated, Appeals Office hearings
historically have been informal, and in enacting section 6330,
Congress did not intend to alter the nature of Appeals Office
hearings. Davis v. Commissioner, 115 T.C. 35, 41 (2000). Thus,
if the parties were not allowed to make a record in the trial
before this Court, they could be precluded from presenting all of
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