concurring opinion of Judge Wherry , in which seven other Judges joined
How later courts described this case
- concurring opinion of Judge Wherry , in which seven other Judges joined
- holding that the APA does not, and never has, applied to the Tax Court’s proceedings
- describing the history underlying the Tax Court’s deficiency jurisdiction
- when determining whether a taxpayer is entitled to relief under section 6015, the Court may consider evidence introduced at trial but not included in the administrative record
Written by the judges who cited it.
The opinion
Vasquez, J., concurring: I agree with the majority opinion and write separately to clarify the confusion that exists between the terms “scope of review” and “standard of review”.
It is important to distinguish between two separate concepts: scope of review and standard of review. 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. See Franklin Sav. Association v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1136 (10th Cir. 1991).
In Robinette v. Commissioner, 439 F.3d 455, 460 (8th Cir. 2006), revg. 123 T.C. 85 (2004), the U.S. Court of Appeals for the Eighth Circuit stated: “The agreed-upon standard of review [abuse of discretion] itself implies that review is limited to the administrative record”. To support this conclusion, the Court of Appeals relied on Living Care Alt. of Utica, Inc. v. United States, 411 F.3d 621 (6th Cir. 2005). See Robinette v. Commissioner, supra at 458-459 . Living Care, however, dealt with the standard of review (abuse of discretion) and not the scope of review (de novo or the administrative record).
With all due respect to the Court of Appeals for the Eighth Circuit, I believe it is incorrect to conclude when the standard of review is “abuse of discretion” that a fortiori our scope of review is limited to the administrative record. See majority op. pp. 122-123 (listing numerous instances where the standard of review the Court applies is “abuse of discretion” but where the scope of our review is not limited to the administrative record; i.e., we conduct trials de novo and receive evidence in accordance with Rule 143 and section 7453).
Swift and Wells, JJ., agree with this concurring opinion.