- 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...)Page: 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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