Francis A. Morlino - Page 9

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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,           

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