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MARVEL, J. concurring: I agree that the Administrative
Procedure Act does not apply and we are not limited to the
administrative record, and with the majority’s conclusion that
the Appeals officer abused his discretion in this case, but I
question the majority’s reliance on principles of contract law to
reach its conclusion. The Appeals officer’s failure to refer the
case to the National Office for guidance regarding the
reinstatement of petitioner’s offer-in-compromise before making
his determination in this case is more than sufficient to support
the conclusion that the Appeals officer abused his discretion in
upholding the proposed collection action.
In his brief, petitioner asserted several errors that he
contended established an abuse of discretion. One of those
errors was that the Appeals officer “did not fully investigate
the method of reinstating a revoked Offer in Compromise.” The
Appeals officer testified at trial that he did not believe that
he had the authority to reinstate the offer-in-compromise. He
also testified, however, that he could have referred the case to
the National Office for guidance concerning the reinstatement of
an offer-in-compromise.1 Given the importance of the
reinstatement issue in determining whether the collection action
1Although the Appeals officer’s case activity records
indicate that he telephoned a person in the National Office on at
least two occasions regarding whether a defaulted offer-in-
compromise could be reinstated, it does not appear from the
records that formal guidance from the National Office was ever
obtained.
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