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determination is abuse of discretion and the appropriate scope of
review, pursuant to the record rule, is the hearing record. 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).
Respondent recognizes that there are exceptions to the general
rule; e.g., “where the administrative record fails to disclose
the factors considered by the agency”,3 “where necessary for
background information”,4 and “where the agency failed to
consider all relevant factors”.5 Nevertheless, respondent
argues that none of those exceptions exist here.
Respondent also recognizes that, recently, in Robinette v.
Commissioner, 123 T.C. 85, 101 (2004), we held that, in reviewing
for an abuse of discretion under section 6330(d), we are not
limited to the administrative record. In Robinette, we were
asked to review an Appeals officer’s determination that the
3 Respondent cites Citizens to Preserve Overton Park, Inc.
v. Volpe, 401 U.S. 402, 420 (1971), overruled on unrelated
grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977).
4 Respondent cites Thompson v. U.S. Dept. of Labor, 885
F.2d 551, 555 (9th Cir. 1989).
5 Respondent cites Fla. Power & Light Co. v. Lorion, 470
U.S. 729, 744 (1985); accord Franklin Sav. Association v.
Director, 934 F.2d 1127, 1137-1138 (10th Cir. 1991).
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