- 64 -
deficiencies asserted by the Commissioner, which proceedings
unquestionably are conducted on a de novo basis). Id. at 38-39.
The Court also reasoned that, inasmuch as a section 6015(f) claim
(1) does not necessarily involve the review of discretionary
action on the part of the Commissioner, see sec.
6015(e)(1)(A)(i)(II), (2) may be raised as an affirmative defense
in an otherwise de novo deficiency proceeding, see, e.g., Butler
v. Commissioner, 114 T.C. 276, 287-288 (2000), and (3) may
involve the intervention of a third party (i.e., the
nonrequesting spouse) who may not have participated in the
administrative proceeding, see sec. 6015(e)(4), Congress likely
intended a uniform, de novo scope of review to apply to such
claims. See Ewing v. Commissioner, supra at 42-43.
In the instant case, despite the lack of any reference to
the APA in respondent’s opening brief, the majority frames the
issue regarding the appropriate scope of review as follows:
“Applicability of the APA Judicial Review Provisions to Tax Court
Proceedings Commenced Under Section 6330(d)”. Majority op. p.
17. The ensuing discussion in the majority opinion is based
primarily on Judge Thornton’s concurring opinion in Ewing v.
Commissioner, supra at 50-56, which focuses exclusively on the
APA issue. The majority loses sight of the fact that, in Ewing,
a substantial portion of the Court’s analysis, as discussed
above, was based on the unique aspects of section 6015. The
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