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B. Positions of the Parties
Respondent’s relevancy objection is based on the fact that
petitioner’s underlying liability for the unpaid tax was not
raised at the hearing (and is not before the Court).
Accordingly, argues respondent, the appropriate standard for our
review of Mr. O’Shea’s determination is abuse of discretion, and
the appropriate scope of review, pursuant to the record rule, is
the administrative record made during the hearing. The record
rule is the general rule of administrative law that a court can
engage in judicial review of an agency action only on the basis
of the record amassed by the agency. 2 Pierce, Administrative
Law, sec. 11.6, at 822 (4th ed. 2002); see United States v. Carlo
Bianchi & Co., 373 U.S. 709, 714 (1963).
Petitioner responds that our holding in Robinette v.
Commissioner, 123 T.C. 85 (2004), pertains to the matter and the
scope of review is not limited to the administrative record.2
2 Recently, the Court of Appeals for the First Circuit
reviewed a District Court judgment that, pursuant to sec.
6330(d)(1), had affirmed an Appeals Office determination made
pursuant to sec. 6330(c)(3) that a levy to collect certain unpaid
employment taxes and penalties could proceed. Olsen v. United
States, 414 F.3d 144 (1st Cir. 2005), affg. 326 F. Supp. 2d 184
(D. Mass. 2004). The Court of Appeals upheld the record rule as
defining the scope of judicial review of such a determination
when, as in the case it was reviewing, the taxpayer’s underlying
liability is not in issue. See id. at __. The Court of Appeals
distinguished Robinette v. Commissioner, 123 T.C. 85 (2004).
Olsen v. United States, supra at __ n.9. Therefore, we are not
required by the doctrine of Golsen v. Commissioner, 54 T.C. 742,
757 (1970), affd. 445 F.2d 985 (10th Cir. 1971), to follow Olsen,
(continued...)
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