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are heard, where an independent judgment is rendered.”11 Senator
Nickles also stated:
Some people were saying, well, let us just pass the
House bill. We can pass that unanimously and it can be
signed into law by the bill. But we are adding a
provision that came out in Oklahoma, and also the
hearings here, that a taxpayer would be given the
opportunity for a court hearing before liens, levies,
or seizures of his assets. That is a very important
provision. It was not in the House bill, but is in the
Senate bill. [S. Hrg. 105-598, IRS Oversight Hearings,
at 10.]
Congress knew that proceedings in Tax Court would be
conducted de novo. In response to a question from Senator Roth
(“what can be done to protect the taxpayers’ legitimate
interest?”), Michael Saltzman--an attorney with 33 years of
experience, a professor of taxation, and author of a treatise on
IRS practice and procedure--responded that the Tax Court “has
ruled and has for years stated that what happens in the Tax Court
is a de novo proceeding”.12 (Emphasis added.)
11 S. Hrg. 105-529, IRS Restructuring Hearings, at 7.
12 S. Hrg. 105-529, IRS Restructuring Hearings, at 126,
132, 133. As Judges Halpern and Holmes aptly wrote: “it is
important to distinguish between two concepts--‘scope of review’
and ‘standard of review’--that delimit judicial review of agency
action.” Ewing v. Commissioner, 122 T.C. 32, 56-67 (2004)
(Halpern and Holmes, JJ., dissenting), vacated 439 F.3d 1009 (9th
Cir. 2006). Citing Franklin Sav. Association v. Office of Thrift
Supervision, 934 F.2d 1127, 1136 (10th Cir. 1991), they
explained: “The scope of judicial review refers merely to the
evidence the reviewing court will examine in reviewing an agency
decision. The standard of judicial review refers to how the
reviewing court will examine that evidence.” Id. at 56. I
(continued...)
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