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WHERRY, J., concurring: While I agree with the majority in
concluding that our review is not limited to the administrative
record, I write separately to emphasize the temporal requirement
which, in my view, must be met to satisfy the evidentiary burden.
The majority holds:
that, when reviewing for abuse of discretion under
section 6330(d), we are not limited by the
Administrative Procedure Act (APA) and our review is
not limited to the administrative record. The evidence
in this case pertains to issues raised at the hearing.
The [new] evidence in this case is relevant and
admissible. [Majority op. p. 17.]
This conclusion should not be construed as sanctioning the
dilatory introduction at trial of new facts or documents
previously withheld and not produced at the Appeals hearing in
order to justify reversal or remand of the Appeals or settlement
officer’s determination. “It is the responsibility of the
taxpayer to raise all relevant issues at the time of the pre-levy
hearing.” H. Conf. Rept. 105-599, at 266 (1998), 1998-3 C.B.
747, 1020; see Magana v. Commissioner, 118 T.C. 488, 493 (2002).
“Taxpayers will be expected to provide all relevant information
requested by Appeals, including financial statements, for its
consideration of the facts and issues involved in the hearing.”
Sec. 301.6330-1(e)(1), Proced. & Admin. Regs.
Nevertheless, pursuant to section 6330(d)(2), the Internal
Revenue Service Office of Appeals retains jurisdiction of the
collection action after the determination is made and a taxpayer
may “apply for consideration of new information, make an offer-
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