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