- 63 -                                         
               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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