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b. Analogy to Deficiency Proceedings
Distilled to its essence, this portion of the majority’s
analysis proceeds from two major premises and one minor premise.
The major premises are: (1) Our de novo deficiency procedures
were well established before the enactment of the APA in 1946;
and (2) Congress did not intend to disturb those existing
procedures when it enacted the APA. We have absolutely no
quarrel with either of those premises. By definition, then, the
judge-made record rule, which is generally applicable to judicial
review of agency action, does not apply to deficiency proceedings
in this Court. The majority’s conclusion that the record rule is
inapplicable to our section 6330 cases as well is based on the
minor premise that section 6330, enacted in 1998, is “part and
parcel” of the “specific statutory framework for reviewing
determinations of the Commissioner” (i.e., our de novo deficiency
procedures) that Congress did not intend to disturb in 1946. See
majority op. p. 21. It is that minor premise that we are unable
to accept. Cf. Ewing v. Commissioner, supra at 64 n.11, 65-66
(Halpern and Holmes, JJ., dissenting).
c. Section 6330 Hearings as Informal Adjudications
Here the majority seems to imply that only formal agency
adjudications (i.e., those subject to the procedures set forth in
APA sections 554, 556, and 557) are subject to the record rule.
According to the Supreme Court, however, the record rule is no
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