James M. Robinette - Page 61

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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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