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B. Evidentiary Scope of Review
1. Unwarranted Extension of Ewing v. Commissioner
In Ewing v. Commissioner, supra (a report reviewed by the
Court pursuant to section 7460(b)), the Court held that, in
determining whether the Commissioner has abused his discretion in
denying “equitable” innocent spouse relief under section 6015(f),
the Court is not limited to a review of the administrative
record; i.e., the petitioning taxpayer is entitled to a trial de
novo. The Commissioner had argued that we are so limited
“pursuant to the Administrative Procedure Act (APA), 5 U.S.C.
secs. 551-559, 701-706 (2000) and cases decided thereunder”.3
Id. at 35.
Although the Court disagreed with the Commissioner’s APA
argument, id. at 36, it based its holding largely on the language
and structure of section 6015. Specifically, the Court focused
on the similar language in section 6015(e)(1)(A) (jurisdiction to
“determine” the appropriate relief under section 6015) and
sections 6213 and 6214(a) (jurisdiction to “redetermine”
3 As we discussed in our dissenting opinion in Ewing v.
Commissioner, 122 T.C. 32, 57-59 (2004) (Halpern and Holmes, JJ.,
dissenting), the issue regarding the applicability of the APA is
a red herring. The issue in Ewing was whether our review of the
Commissioner’s denial of sec. 6015(f) relief is subject to the
record rule–-the general rule of administrative law that a court
can engage in judicial review of an agency action only on the
basis of the record amassed by the agency. See id. at 56, 58.
The record rule predates, and indeed is not codified in, the APA.
Id. at 58 n.4.
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