Section of Taxation Publications
  VOL. 58
NO. 4
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 Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.

Mixing It Up: The Tax Court Pairs a De Novo Scope of Review with an Abuse of Discretion Standard of Review under Section 6330(d) in Robinette v. Commissioner
Eliza Mae Scheibel


In Robinette v. Commissioner, the Tax Court addressed the issue of the proper scope of review in cases arising from taxpayer appeals of collection due process hearings under section 6330. The taxpayer argued that a de novo standard of review was appropriate, and that the court could consider evidence not included in the administrative record. The Service contended that the Tax Court was governed by the record rule since the agency decision was being reviewed for an abuse of discretion. The court ultimately concluded that while the proper standard of review was abuse of discretion, the appropriate scope of review was de novo. The Tax Court held that it may consider evidence outside the administrative agency record at trials appealing Service decisions under section 6330(d). The Tax Court also held that it was not bound by the Administrative Procedure Act (APA) or the record rule, even though it was applying an abuse of discretion standard of review. The court held that the Service’s appeals officer had abused his discretion when he failed to consider whether the taxpayer had materially breached an offer in compromise (OIC) before declaring the OIC agreement in default. While 14 judges on the Tax Court agreed that neither the APA nor the record rule applied in this case, and that the appeals officer had abused his discretion, several concurring opinions suggest variations and limiting principles on these holdings. In addition, Judges Halpern and Holmes wrote a strong dissent, arguing for the applicability of the APA and the record rule, a position they have defended in the past.

This Note examines the court’s decision in light of the legislative intent of section 6330 and the taxpayer due process rights of the Restructuring and Re-form Act of 1998 (RRA). Part I describes the statutory background of section 6330 and the APA. Part II sets forth the facts of the case and summarizes the pertinent portions of the Tax Court’s seven opinions. Part III explains the uncertainty of the law surrounding the application of the APA to the judicial review provisions of section 6330 at the time of the case. It also argues that in the face of this legal uncertainty, the Tax Court majority chose the scope of review that best achieves the legislative intent of section 6330. Part IV concludes that while Robinette increases judicial oversight of the tax collection process and is accordingly pro-taxpayer, it should not be difficult for the Service to avoid the admission of non record evidence in the Tax Court. Ultimately, the case attempts to resolve only a small area of the ambiguity surrounding section 6330 and may have raised more issues in the process.


Published by
Section of Taxation, American Bar Association
With the Assistance of
Georgetown University Law Center


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