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we do address certain difficulties with the majority’s scope of
review analysis in this case.
a. Prior Section 6330 Cases in This Court
The majority cites five Memorandum Opinions of this Court in
support of the statement that “[a]t trials under section 6330
when reviewing for abuse of discretion, the Court has received
into evidence testimony and exhibits that were not included in
the administrative record.” Majority op. pp. 17-18. None of
those opinions addresses the issue in this case; i.e., whether it
is appropriate for the Court to go beyond the administrative
record in a section 6330 case. The majority also cites three
additional Memorandum Opinions of this Court in which “we * * *
noted the taxpayer’s failure to present evidence at trial.”
Majority op. p. 19 n.4. Again, none of those opinions addresses
the issue of whether it is appropriate for the Court to consider
matters beyond the administrative record in a section 6330 case.
The majority also cites and quotes an unpublished opinion of
the Court of Appeals for the Ninth Circuit affirming one of the
aforementioned cases. Majority op. pp. 18-19; see Holliday v.
Commissioner, 91 AFTR 2d 2003-1338, 2003-1 USTC par. 50,358 (9th
Cir. 2003), affg. T.C. Memo. 2002-67. That court did devote two
4(...continued)
Inc. v. Commissioner, 933 F.2d 1084 (2d Cir. 1991), affg. 92 T.C.
525 (1989), and Krause v. Commissioner, 99 T.C. 132 (1992), affd.
sub nom. Hildebrand v. Commissioner, 28 F.3d 1024 (10th Cir.
1994)).
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