- 70 -
subject to our deficiency jurisdiction. See Ewing v.
Commissioner, supra at 65-66 (Halpern and Holmes, JJ.,
dissenting). We continue to adhere to that view.6
The majority cites a number of cases decided under the abuse
of discretion standard, stating that “[i]n none of these types of
cases have we held * * * that we are limited to the
administrative record.” Majority op. p. 26 (emphasis added). In
three of the types of cases to which the majority alludes
(involving section 482 reallocations, section 446 “clear
reflection of income” determinations, and waivers of the former
section 6659 addition to tax), the inapplicability of the record
rule is consistent with the suggested approach discussed in the
preceding paragraph. See Ewing v. Commissioner, supra at 65
(Halpern and Holmes, JJ., dissenting).
The other two types of cases cited by the majority involve
declaratory judgments with respect to determinations of the
Commissioner under section 7428 (tax-exempt status) and section
7476 (qualified status of retirement plans).7 De novo
6 The fact that our application of an abuse of discretion
standard may be the subject of a trial de novo does not
necessarily mean that we are free to substitute our judgment for
that of the Commissioner in such cases. See, e.g., Capitol Fed.
Sav. & Loan Association v. Commissioner, 96 T.C. 204, 209 (1991)
(sec. 446); Bausch & Lomb, Inc. v. Commissioner, 92 T.C. 525
(1989), affd. 933 F.2d 1084 (2d Cir. 1991) (sec. 482).
7 Separately, the majority cites two Memorandum Opinions of
this Court in support of the proposition that “[t]he Court has
(continued...)
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