James M. Robinette - Page 58

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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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