Robinette v. Comm'r

Thornton, J., concurring: I agree with the majority opinion’s holding that the Administrative Procedure Act (apa), 5 U.S.C. secs. 551-559 , 701-706 (2000), does not apply to our proceedings under section 6330. Since its enactment in 1946, the APA has never governed proceedings in this Court (or in its predecessor, the Board of Tax Appeals), and there is no indication that, in enacting section 6330, Congress intended to change this general inapplicability of the APA. See Ewing v. Commissioner, 122 T.C. 32, 50 (2004) (Thornton, J., concurring); see also O’Dwyer v. Commissioner, 266 F.2d 575, 580 (4th Cir. 1959) (“The Tax Court * * * is a court in which the facts are triable de novo * * *. We agree that the Tax Court is not subject to the Administrative Procedure Act”), affg. 28 T.C. 698 (1957).

I also agree with the majority opinion’s holding that, under the circumstances of this case, we may consider relevant evidence presented at trial which was not included in respondent’s administrative record. As discussed in my concurring opinion in Ewing, this Court traditionally has applied de novo trial procedures when reviewing the Commissioner’s determinations, including in cases that we review for an abuse of discretion.

The majority opinion should not be construed, however, to hold that the administrative record has no significance in our review of determinations under sections 6320 and 6330. Indeed, the administrative record takes on added significance under these sections given the statutory requirement of an Appeals Office hearing, and we often have relied on the administrative record in reviewing Appeals Office determinations. Moreover, in appropriate circumstances, we might restrict ourselves to the administrative record — for instance, where the taxpayer has failed to cooperate in presenting relevant evidence at the Appeals Office hearing. In the instant case, petitioner attempted to introduce relevant evidence at the Appeals Office hearing, but the Appeals officer refused to consider that evidence and failed to include it in the administrative record. In these circumstances, I agree with the majority opinion that we are not limited to evidence in the administrative record.

Section 6330(c)(2) provides that a taxpayer may raise at the Appeals Office hearing “any relevant issue relating to the unpaid tax or the proposed levy”. Section 6330(c)(3) requires that the determination by an Appeals officer shall take into consideration the relevant issues raised by the taxpayer in the Appeals Office hearing. In this case, Judge Vasquez, as the trial Judge, has found that issues relating to whether petitioner defaulted on the offer-in-compromise are relevant issues that petitioner raised in the Appeals Office hearing and which should have been considered by the Appeals officer in his determination, but were not. I defer to Judge Vasquez, as the trial Judge, in identifying the issues raised at the Appeals Office hearing and whether those issues are relevant. I also defer to his conclusions that the Appeals officer failed to consider those relevant issues in his determination. On that basis, I agree with the majority opinion that “it was an abuse of discretion for respondent to determine to proceed with collection of petitioner’s tax liability.” Majority op. p. 112.

A taxpayer’s express agreement to file timely tax returns is an integral condition to the Commissioner’s acceptance of an offer-in-compromise, and a reasonable one — it merely confirms an obligation that is statutorily imposed (even in cases where the taxpayer is entitled to a refund), see secs. 6011(a) and 6012, and that is fundamental to our income tax system. Consequently, a taxpayer’s failure to honor this obligation is not to be lightly regarded. With that being said, however, I agree with the majority opinion that it was an abuse of discretion to proceed with collection of petitioner’s tax liability without considering relevant issues relating to petitioner’s offer-in-compromise. I shall defer to Judge Vasquez’s judgment in fashioning an appropriate remedy to address that abuse of discretion.

Gerber, Cohen, Swift, Laro, Foley, Gale, Haines, Goeke, Wherry, and Kroupa, JJ., agree with this concurring opinion.