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THORNTON, J., concurring: I agree with the majority
opinion’s holding that the Administrative Procedure Act (APA), 5
U.S.C. secs. 551-559, 701-706 (2000), does not apply to our
proceedings under section 6330. Since its enactment in 1946, the
APA has never governed proceedings in this Court (or in its
predecessor, the Board of Tax Appeals), and there is no
indication that, in enacting section 6330, Congress intended to
change this general inapplicability of the APA. See Ewing v.
Commissioner, 122 T.C. 32, 50 (2004) (Thornton, J., concurring);
see also O’Dwyer v. Commissioner, 266 F.2d 575, 580 (4th Cir.
1959) (“The Tax Court * * * is a court in which the facts are
triable de novo * * *. We agree that the Tax Court is not
subject to the Administrative Procedure Act”), affg. 28 T.C. 698
(1957).
I also agree with the majority opinion’s holding that, under
the circumstances of this case, we may consider relevant evidence
presented at trial which was not included in respondent’s
administrative record. As discussed in my concurring opinion in
Ewing, this Court traditionally has applied de novo trial
procedures when reviewing the Commissioner’s determinations,
including in cases that we review for an abuse of discretion.
The majority opinion should not be construed, however, to
hold that the administrative record has no significance in our
review of determinations under sections 6320 and 6330. Indeed,
the administrative record takes on added significance under these
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