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review of Ms. Boudreau’s exercise of discretion should be based
solely on the information presented to, and considered by, her.
2. Petitioner’s Position
On brief, petitioner argues: “[T]he infirmities in the
Respondent’s Determination, record and procedures require the
introduction of extrinsic evidence for an in depth review of the
Respondent’s Hearing.”
C. Discussion
1. Introduction
Petitioner’s underlying tax liability is not at issue. The
appropriate standard of review is, as respondent claims, abuse of
discretion. See supra section II. of this report.
We decline to overrule Robinette v. Commissioner, 123 T.C.
85 (2004).6 We shall, however, sustain respondent’s objection to
6 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
where, as in the case it was reviewing, the underlying tax
liability is not in issue. See id. at 155. The Court of Appeals
distinguished Robinette v. Commissioner, 123 T.C. 85 (2004), on
the ground that it is premised on considerations that are unique
to the Tax Court. Olsen v. United States, supra at 154 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 with respect to the appropriate scope
of our review, notwithstanding that, barring stipulation of the
(continued...)
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