- 61 - 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). ThePage: Previous 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 Next
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