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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
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