Francis A. Morlino - Page 10

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          Petitioner argues that his testimony “[demonstrates] the                    
          inflexibility of the Hearing Officer”.                                      
               C.  Discussion                                                         
               At trial, petitioner specifically disclaimed that his                  
          underlying liability for the unpaid tax is at issue.  The                   
          appropriate standard of review is, therefore, abuse of                      
          discretion.  See supra sec. II of this report.                              
               Robinette v. Commissioner, supra, is a case of this Court in           
          which, pursuant to section 6330(d)(1), we reviewed a                        
          determination by an Appeals officer to proceed with collection of           
          an unpaid tax.  Since the taxpayer’s underlying liability was not           
          an issue, we determined that the proper standard of review was              
          abuse of discretion.  Id. at 94.  Nevertheless, we considered               
          testimony and other evidence that was not part of the                       
          administrative record.  Id. at 103-104.  We noted, however, that            
          any evidence admissible in a trial before this court had to be              
          admissible under the Federal Rules of Evidence.  Id. at 103.  We            
          rejected the Commissioner’s argument that the evidence in                   
          question was inadmissible because not relevant.  Id. at 103-104             
          (discussing rules 401 and 402 of the Federal Rules of Evidence).            
          We found the evidence relevant because it tended to show that the           

          notwithstanding that, barring stipulation of the parties to the             
          contrary, appeal of this case would lie to the Court of Appeals             
          for the First Circuit.  See sec. 7482(b).                                   

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