James M. Robinette - Page 69

                                       - 69 -                                         
          less applicable to judicial review of informal agency action.               
          See, e.g., Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744              
          (1985).  In the event the administrative record of such an                  
          informal proceeding is insufficiently developed, “the proper                
          course, except in rare circumstances, is to remand to the agency            
          for additional investigation or explanation.”  Id.; see also                
          United States v. Carlo Bianchi & Co., 373 U.S. at 718 (remand               
          “would certainly be justified where the department had failed to            
          make adequate provision for a record that could be subjected to             
          judicial scrutiny”).                                                        
                    d.  Other Instances Where the Court Reviews for Abuse             
                    of Discretion                                                     

               The majority notes that the Court “‘has a long tradition of            
          providing trials when reviewing the Commissioner’s determinations           
          under an abuse of discretion standard.’”  Majority op. p. 25                
          (quoting Judge Thornton’s concurring opinion in Ewing v.                    
          Commissioner, 122 T.C. at 53).  In our Ewing dissent, we                    
          suggested (on the basis of language in Estate of Gardner v.                 
          Commissioner, 82 T.C. 989, 999, 1000 (1984)) that our application           
          of an abuse of discretion standard is properly the subject of a             
          trial de novo when the exercise of discretion at issue is                   
          relevant to the Commissioner’s determination of the existence or            
          amount of a deficiency in tax or an addition to tax that is                 








Page:  Previous  59  60  61  62  63  64  65  66  67  68  69  70  71  72  73  74  75  76  77  78  Next

Last modified: May 25, 2011