- 65 -
majority’s extension of Ewing to section 6330 cases is both
unwarranted and uncritical.
2. Additional Criticism of the Majority’s Scope
of Review Analysis
In our dissenting opinion in Ewing v. Commissioner, 122 T.C.
at 56-67 (Halpern and Holmes, JJ., dissenting), we discussed at
some length our view that, in the context of our “review”
jurisdiction, see id. at 56 n.1 and accompanying text, the
appropriate evidentiary scope of review is the administrative
record. See, e.g., Camp v. Pitts, 411 U.S. 138, 142 (1973) (in
reviewing agency action for abuse of discretion, “the focal point
for judicial review should be the administrative record already
in existence, not some new record made initially in the reviewing
court”); United States v. Carlo Bianchi & Co., 373 U.S. 709, 715
(1963) (the terms “arbitrary” and “capricious” “have frequently
been used by Congress and have consistently been associated with
a review limited to the administrative record”). While we see no
need to repeat here our entire analysis in support of that view,4
4 We do note that, in our Ewing dissent, we addressed much
of the authority relied on by the majority here in its scope of
review analysis. See, e.g., Ewing v. Commissioner, supra at 60-
61 (Halpern and Holmes, JJ., dissenting) (criticizing O’Dwyer v.
Commissioner, 266 F.2d 575 (4th Cir. 1959), affg. 28 T.C. 698
(1957)); id. at 60 n.7 (explaining the context of Nappi v.
Commissioner, 58 T.C. 282 (1972)); id. at 61 n.9 (explaining the
context of Bowen v. Massachusetts, 487 U.S. 879, 903 (1988), and
Beall v. United States, 336 F.3d 419 (5th Cir. 2003)); id. at 64
n.11 (discussing APA sec. 559); id. at 65-66 (distinguishing Thor
Power Tool v. Commissioner, 439 U.S. 522 (1979), Bausch & Lomb,
(continued...)
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