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and (2) unwisely extends Ewing v. Commissioner, 122 T.C. 32
(2004), which involved the evidence we may consider in a
proceeding involving section 6015(f) (“equitable” innocent spouse
relief). Respectfully, we dissent.
I. Issues Regarding the Scope of Our Review
Before we address the substantive aspect of the majority
opinion, we turn our attention to our concerns regarding
procedure.
A. “Topical” Scope of Review
As the majority recognizes, majority op. p. 27, we held in
Magana v. Commissioner, supra at 493, that, in reviewing
determinations of the Commissioner under section 6330(d)(1) for
abuse of discretion, “generally we consider only arguments,
issues, and other matter that were raised at the collection
hearing or otherwise brought to the attention of the Appeals
Office.” See also sec. 301.6330-1(f)(2), Q&A-F5, Proced. &
Admin. Regs. (taxpayer appealing the Commissioner’s determination
may ask the court to consider only issues that were raised at the
administrative hearing). The majority distinguishes Magana on
the ground that “petitioner is not raising a new issue in his
petition.” Majority op. p. 29. As far as it goes, that is a
true statement: Neither in the petition nor, previously, in his
dealings with the Appeals Office did petitioner raise the issue
of “material breach” (the majority does that on its own). The
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