Van Arsdalen v. Comm'r

T.C. Memo. 2007-48

UNITED STATES TAX COURT

DIANA VAN ARSDALEN, f.k.a. DIANA MURRAY, Petitioner, AND
STANLEY DAVID MURRAY, Intervenor v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1195-04. Filed March 5, 2007.

Jack B. Schiffman, for petitioner.

Stanley David Murray, pro se.

Rachael J. Zepeda, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COLVIN, Chief Judge: Respondent determined that petitioner

is not entitled to relief under section 6015(b), (c), or (f)1 for

1
Unless otherwise provided, section references are to the
Internal Revenue Code as amended. Rule references are to the Tax
(continued...)
 - 2 -

1992, 1993, 1994, 1995, or 1996 (the years in issue). Petitioner

petitioned this Court under section 6015(e)(1) and contends she

is eligible for relief under section 6015(f). Petitioner’s

former husband, Stanley Murray (intervenor), intervened and

supports her claim.2 See Rule 325(b). We hold that petitioner

is entitled to relief under section 6015(f) for the years in

issue.3

Based on Billings v. Commissioner, 127 T.C. 7 (2006), and

Commissioner v. Ewing, 439 F.3d 1009 (9th Cir. 2006), revg. 118

T.C. 494 (2002) and vacating 122 T.C. 32 (2004), we dismissed

this case for lack of jurisdiction by order dated October 2,

2006. See also Bartman v. Commissioner, 446 F.3d 785 (8th Cir.

2006), affg. in part and vacating in part T.C. Memo. 2004-93.

However, Congress subsequently reinstated our jurisdiction to

review the Commissioner’s determinations under section 6015(f)

with respect to tax liability remaining unpaid on or after

December 20, 2006. Tax Relief and Health Care Act of 2006, Pub.

L. 109-432, div. C, sec. 408, 120 Stat. 3061. The parties

1
(...continued)
Court Rules of Practice and Procedure.
2
We previously held that Mr. Murray may intervene to
support petitioner’s claim for relief. Van Arsdalen v.
Commissioner, 123 T.C. 135 (2004).
3
Respondent contends that we may consider only the
administrative record in deciding this case. See discussion
below at par. D, p. 20.
 - 3 -

reported to the Court that as of December 20, 2006, unpaid taxes

remain in this case. On December 27, 2006, we vacated our order

dismissing this case for lack of jurisdiction.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

A. Petitioner and Intervenor

Petitioner resided in Scottsdale, Arizona, when she filed

her petition. Petitioner and intervenor (collectively, the

Murrays) were married in September 1988 and were divorced in June

1998. They had two children.

Petitioner has a high school education. She was employed

full time for several years before she married intervenor when

she was 30. She worked full time until January 1990. The

Murrays had their first child in February 1990. Petitioner

occasionally worked part time from then until they separated in

1998.

Intervenor was a self-employed practicing lawyer most of the

time he was married to petitioner.

Intervenor was the family’s primary earner and handled the

family finances. He wrote the majority of checks to pay the

family living expenses. The Murrays did not live well, and money

was always tight. In 1993, intervenor submitted an offer-in-

compromise with respect to years not identified in the record.
 - 4 -

Petitioner did not know that intervenor filed an offer-in-

compromise in 1993.

B. The Murrays’ Joint Federal Income Tax Returns

Intervenor was responsible for making estimated payments of

Federal income tax relating to income from his law practice. He

did not make these payments, even though he told petitioner that

he was doing so.

The Murrays filed joint Federal income tax returns for 1992

through 1996. Intervenor gave income tax returns to petitioner

to sign each year around April 14. Petitioner reviewed those

returns, on which the Murrays reported tax due (including

additions to tax for underpayment of estimated tax) of $11,131,

$14,933, $10,263, $2,114, and $6,252 for 1992, 1993, 1994, 1995,

and 1996, respectively. Petitioner knew that their taxes were

not being fully paid when the returns were filed, but intervenor

assured her that he would fully pay those taxes from his future

law practice earnings.

C. Events After the Years in Issue

The Murrays sold their home in mid-1997, and respondent

applied the proceeds ($18,818.96) to their tax liability for 1988

on June 16, 1997.

The Murrays filed for bankruptcy under chapter 13 in

September 1997. The bankruptcy case was dismissed on August 5,

1998. No taxes were discharged in that proceeding.
 - 5 -

The Murrays were divorced in June 1998. The property

settlement, which was included in the Murrays’ divorce decree,

provided, inter alia, that intervenor was solely responsible for

paying their community debts. This included their joint tax

liability.

After her divorce from intervenor, petitioner had custody of

her and intervenor’s two children, found new employment, married

Mark Van Arsdalen (Mr. Van Arsdalen), and had a third child.

Petitioner has complied with tax laws since 1997.

D. Petitioner’s Request for Relief Under Section 6015

On April 3, 2001, respondent received petitioner’s Form

8857, Request for Innocent Spouse Relief, in which petitioner

sought relief from joint liabilities of tax under section

6015(b), (c), and (f) for 1989 and 1991 through 1996. Respondent

granted petitioner’s request for relief for 1989 and 1991 on

December 17, 2001. On October 24, 2003, respondent determined

that petitioner was not qualified for relief under section 6015

for 1992 through 1996.

E. Petitioner’s Finances

In May 2005, petitioner and intervenor owed tax, penalties,

and interest in the amount of $110,114.72. At that time,

petitioner was about 47 years old and had about $63,000 in her

section 401(k) retirement plan account and about $45,000 in
 - 6 -

credit card debt. Intervenor paid $560 per month in child

support payments to petitioner.

Petitioner’s wages in 2001 were $55,217. On May 31, 2001,

petitioner gave respondent a list of six monthly living expenses

totaling about $2,300: Mortgage payment, $1,100; utilities, $200

to $300; food, $400 to $500; car expenses, $375; car insurance,

$150; and clothing (no amount stated). Petitioner’s monthly

income in 2001 (including child support payments) was $4,184.

Petitioner’s wages were about $58,000 in 2002. Petitioner

and Mr. Van Arsdalen’s total income (including deferred

compensation not further described in the record, and gross

proceeds from the sale of stock by Mr. Van Arsdalen) was $86,260

in 2001, $120,374 in 2002, and $113,183 in 2003.

Petitioner gave respondent a list dated June 30, 2003, of

eight of her monthly living expenses for 2003 totaling about

$2,900: Child care, $400; car payment, $500; car insurance,

$100; mortgage, $1,200; utilities, $300 to $350; telephone, $100;

health insurance, $220; and dental insurance, $50.

Mr. Van Arsdalen changed jobs around February 2004, and his

income increased slightly. In 2005, petitioner estimated that

the cost of some of the items she had reported to respondent in

2001 and 2003 had increased, that her monthly clothing expenses

were $300, and that she spent $100 per month for medical expenses

for one of her children. In 2005, petitioner also had monthly
 - 7 -

expenses totaling at least $1,600 for several items she had not

listed for 2001 or 2003, such as flood insurance ($125), payments

on a home equity loan ($250), credit card payments ($900), dry

cleaning ($80), personal care services (hair and nails) ($115-

$140), telephone, cable, and Internet service ($160), Federal

income and Social Security taxes, and State income tax.

In 2005, petitioner had no collectibles, art, stock,

annuities, life insurance with cash value, savings bonds, savings

account, or any other accounts with financial institutions other

than her section 401(k) retirement account.

As of January 7, 2003, petitioner and intervenor owed tax,

penalties, and interest in the amount of $27,626.39 for 1992,

$34,170.77 for 1993, $21,804.15 for 1994, $2,719.74 for 1995, and

$11,351.78 for 1996 for a total of $97,668.83.

OPINION

A. Background

If husband and wife file a joint Federal income tax return,

they are jointly and severally liable for the tax due. Sec.

6013(d)(3); Butler v. Commissioner, 114 T.C. 276, 282 (2000).

However, a spouse may qualify for relief from joint liability

under section 6015(b) or (c) if various requirements are met.

The parties agree that petitioner does not qualify for relief

under section 6015(b) or (c).
 - 8 -

If relief is not available under section 6015(b) or (c), the

Commissioner may relieve an individual of liability for any

unpaid tax if, taking into account all the facts and

circumstances, it would be inequitable to hold the individual

liable. Sec. 6015(f). This Court has jurisdiction to review a

denial of equitable relief under section 6015(f). Sec. 6015(e).

We review the Commissioner’s denial of relief for abuse of

discretion. Jonson v. Commissioner, 118 T.C. 106, 125 (2002),

affd. 353 F.3d 1181 (10th Cir. 2003). The taxpayer seeking

relief has the burden of proof. Alt v. Commissioner, 119 T.C.

306, 311 (2002), affd. 101 Fed. Appx. 34 (6th Cir. 2004). To

prevail, the taxpayer must show that the Commissioner’s

determination was arbitrary, capricious, or without sound basis

in law or fact. Butler v. Commissioner, supra at 291-292.

B. Revenue Procedure 2000-15

The Commissioner promulgated a list of factors in Rev. Proc.

2000-15, sec. 4, 2000-1 C.B. 447, 448-449, that the Commissioner

considers in determining whether to grant equitable relief under

section 6015(f).4 First, the Commissioner will not grant relief

4
Respondent’s determination was subject to Rev. Proc.
2000-15, 2000-1 C.B. 447. Rev. Proc. 2000-15, supra, was
superseded by Rev. Proc. 2003-61, 2003-2 C.B. 296, for requests
for relief under sec. 6015(f) that either were filed on or after
Nov. 1, 2003, or were pending on Nov. 1, 2003, and for which no
preliminary determination letter had been issued as of Nov. 1,
2003.
 - 9 -

unless seven threshold conditions have been met: (1) The

taxpayer must have filed joint returns for the taxable years for

which relief is sought; (2) the taxpayer does not qualify for

relief under section 6015(b) or (c); (3) the taxpayer must apply

for relief no later than 2 years after the date of the

Commissioner’s first collection activity after July 22, 1998,

with respect to the taxpayer; (4) the liability must remain

unpaid; (5) no assets were transferred between the spouses filing

the joint returns as part of a fraudulent scheme by such spouses;

(6) there were no disqualified assets transferred to the taxpayer

by the nonrequesting spouse; and (7) the taxpayer did not file

the returns with fraudulent intent. Rev. Proc. 2000-15, sec.

4.01, 2000-1 C.B. at 448. Respondent concedes that petitioner

meets these conditions.

Rev. Proc. 2000-15, sec. 4.03, 2000-1 C.B. at 448-449, lists

two factors which, if true, the Commissioner treats as favoring

relief: (1) The taxpayer is separated or divorced from the

nonrequesting spouse; and (2) the taxpayer was abused by the

nonrequesting spouse. Rev. Proc. 2000-15, sec. 4.03, 2000-1 C.B.

at 449, also lists two facts which, if true, the Commissioner

treats as not favoring relief: (3) The taxpayer received

significant benefit from the unpaid liability or the item giving
 - 10 -

rise to the deficiency; and (4) the taxpayer has not made a good

faith effort to comply with Federal income tax laws in the tax

years following the tax year to which the request for relief

relates. See Ferrarese v. Commissioner, T.C. Memo. 2002-249.

The Commissioner generally does not consider the absence of

factors (1), (2), (3), or (4) in determining whether to grant

relief under section 6015(f). Rev. Proc. 2000-15, sec. 4.03,

2000-1 C.B. at 448-449. However, on the basis of caselaw

deciding whether it was equitable to relieve a taxpayer from

joint liability under former section 6013(e)(1)(D), we consider

the fact that a taxpayer did not significantly benefit from the

unpaid liability as favoring equitable relief for that taxpayer.

See Belk v. Commissioner, 93 T.C. 434, 440-441 (1989); Ferrarese

v. Commissioner, supra; Foley v. Commissioner, T.C. Memo. 1995-

16; Robinson v. Commissioner, T.C. Memo. 1994-557; Klimenko v.

Commissioner, T.C. Memo. 1993-340; Hillman v. Commissioner, T.C.

Memo. 1993-151.

Rev. Proc. 2000-15, sec. 4.03, lists the following four

factors which, if true, the Commissioner treats as favoring

relief and which, if not true, the Commissioner treats as not

favoring relief: (5) The taxpayer would suffer economic hardship

if relief were denied; (6) in the case of a liability that was

properly reported but not paid, the taxpayer did not know and had

no reason to know that the liability would not be paid; (7) the
 - 11 -

liability for which relief is sought is attributable to the

nonrequesting spouse; and (8) the nonrequesting spouse has a

legal obligation pursuant to a divorce decree or agreement to pay

the outstanding liability (weighs against relief only if the

requesting spouse has the obligation). Rev. Proc. 2000-15, sec.

4.03, also states that no single factor is controlling, all

factors will be considered and weighed appropriately, and the

list of factors in Rev. Proc. 2000-15, sec. 4, is not exhaustive.

For reasons discussed next, we conclude that none of the

factors listed in Rev. Proc. 2000-15, supra, supports

respondent’s determination in this case, and additional factors

discussed below favor relief.

C. Application of the Factors Listed in Rev. Proc. 2000-15

1. Petitioner’s Marital Status

Petitioner was divorced from intervenor when she sought

relief. This factor favors petitioner.

2. Spousal Abuse

Petitioner testified that there was no abuse in her former

marriage. Respondent determined that this factor is neutral. We

agree with respondent’s determination on this point.

3. Significant Benefit

Respondent concedes that petitioner did not significantly

benefit from intervenor’s underpayment of tax for 1992 through

1996. This factor favors petitioner. See Belk v. Commissioner,
 - 12 -

supra; Ferrarese v. Commissioner, supra; Foley v. Commissioner,

supra; Robinson v. Commissioner, supra; Klimenko v. Commissioner,

supra; Hillman v. Commissioner, supra.

4. Compliance With Tax Laws

Petitioner complied with Federal income tax laws after 1996,

the last of the years to which petitioner’s request for relief

relates. This factor is neutral.

5. Economic Hardship

Respondent determined and contends that petitioner would not

suffer economic hardship if relief were not granted. We

disagree.

a. Background

A factor treated by the Commissioner as weighing in favor of

relief under section 6015(f) is that paying the taxes owed would

cause the requesting spouse to suffer economic hardship. Rev.

Proc. 2000-15, sec. 4.03(1)(b), 2000-1 C.B. at 448. Respondent

considers the taxpayer to suffer economic hardship if paying the

tax would prevent the taxpayer from paying reasonable basic

living expenses. Sec. 301.6343-1(b)(4)(i), Proced. & Admin.

Regs.; Rev. Proc. 2000-15, secs. 4.02(1)(c) and 4.03(1)(b), 2000-

1 C.B. at 448-449.

The Commissioner considers any information provided by the

taxpayer in determining a reasonable amount for basic living

expenses, including the following: (1) The taxpayer’s age,
 - 13 -

employment status and history, ability to earn, and number of

dependents; (2) the amount reasonably necessary for food,

clothing, housing, medical expenses, transportation, current tax

payments, alimony, child support, or other court-ordered

payments, and expenses necessary to the taxpayer’s production of

income; (3) cost of living in the geographic area where the

taxpayer resides; (4) the amount of property exempt from the levy

that is available to pay the taxpayer’s expenses; (5) any

extraordinary circumstances; and (6) any other factor that the

taxpayer claims bears on economic hardship and brings to the

Commissioner’s attention. Sec. 301.6343-1(b)(4)(ii), Proced. &

Admin. Regs.

b. Petitioner’s Income and Expenses

In recommending that petitioner not be granted relief under

section 6015(f), the Appeals officer said that petitioner had

$1,764 of disposable income per month in 2001, and that her

income had increased since then. That amount roughly equals the

excess of petitioner’s monthly income (including child support)

in 2001 of $4,184 over the six monthly expenses petitioner listed

on May 31, 2001.

Respondent concluded that petitioner’s living expenses are

much lower than they actually are, apparently by erroneously

assuming that the six expenses petitioner listed in 2001 were her

only expenses. Respondent did not consider several additional
 - 14 -

expenses petitioner reported to respondent in 2003. Based on her

submissions to respondent in 2001 and 2003, petitioner’s monthly

expenses in 2003 included: Mortgage payment, $1,200; utilities,

$300 to $350; food, $400 to $500 (in 2001); car payment, $500;

car insurance, $100; car operating expenses (no amount given5);

clothing (no amount given); child care, $400; phone, $100; health

insurance, $220; and dental insurance, $50. These monthly

expenses totaled about $3,300. Respondent’s estimate included

nothing for out-of-pocket medical expenses for one of her

children, or Federal or State income taxes, Social Security tax,

or clothing expenses about which she told respondent in her June

30, 2003, statement. In 2005, she estimated that those expenses

were $300 and $100 per month, respectively. She also had

expenses in 2005 for several other items, such as Federal income

tax and Social Security taxes, State income tax, flood insurance,

a home equity loan, car repairs, dry cleaning and personal care

services, and cable, telephone, and Internet service.

c. Petitioner’s Retirement Fund

Petitioner had a balance of about $63,000 in her section

401(k) retirement plan account in 2005. Section

301.6343-1(b)(4)(ii)(A) through (F), Proced. & Admin. Regs.,

5
Petitioner said that in 2003 her car payments were $500
and car insurance was $100. Giving the most common meaning to
words, those two categories do not include car expenses, which in
2001 she estimated to be $375.
 - 15 -

provides that the Commissioner will consider, inter alia, the

taxpayer’s age, employment status and history, ability to earn,

and number of dependents, and any other factor that the taxpayer

claims bears on economic hardship and brings to the attention of

the Commissioner. We believe these provisions envision

consideration of a taxpayer’s pension needs where appropriate.

In 2003, petitioner was around age 45, had three children, and

had a modest income. Under these conditions, we believe that she

has a reasonable need to retain her modest retirement account.6

d. Conclusion

Petitioner and intervenor owed about $110,000 in tax,

penalties, and interest in May 2005, a very substantial sum given

her financial situation. We conclude that this factor favors

petitioner.

6
In George v. Commissioner, T.C. Memo. 2004-261, we said
the taxpayer could liquidate part of her IRA to pay taxes.
George is distinguishable from the instant case because the
taxpayer in that case had no expenses for dependents and would
have had about $100,000 in her IRA after paying tax of about
$200,000. Petitioner’s modest pension fund could be completely
liquidated if it were used to pay the tax owed.

Shanbaum v. United States, 32 F.3d 180 (5th Cir. 1994),
holding that an ERISA pension is not exempt from levy, has no
bearing here because the Government’s authority to levy is not at
issue.
 - 16 -

6. Knowledge or Reason To Know

a. Background

In determining whether a taxpayer in an underpayment case

qualifies for equitable relief under section 6015(f), respondent

considers whether the requesting spouse knew or had reason to

know that the reported liability would be unpaid. This factor

favors relief if the taxpayer reasonably believed when the return

was filed that the liability would be paid by the taxpayer’s

spouse. See Wiest v. Commissioner, T.C. Memo. 2003-91 (the

taxpayer reasonably believed taxes owed would be paid by spouse).

Respondent determined and contends that petitioner knew or had

reason to believe that the tax would not be paid. We disagree

for reasons stated next.

b. The Offer-in-Compromise

Respondent contends that an offer-in-compromise submitted to

respondent in 1993 by intervenor gave petitioner reason to know

the taxes were not being paid. We disagree. The offer-in-

compromise is not in the record, and there is nothing to support

respondent’s contention that petitioner knew about it. We

conclude that petitioner did not know that intervenor filed an

offer-in-compromise in 1993.

c. Petitioner and Intervenor’s Tax Returns

Respondent contends the fact that petitioner signed and

filed balance due returns shows that she did not reasonably
 - 17 -

believe the unpaid tax reported on the returns would be paid.

Respondent contends that petitioner’s reliance on intervenor’s

assurances that he would pay all taxes due was unreasonable

because intervenor had underpaid his estimated taxes and the

Murrays habitually owed money that they could not pay. We

disagree. Intervenor intentionally misled petitioner into

thinking he was fulfilling their tax obligations.

Petitioner had a high school education and stayed home to

raise their children during most of the years she was married to

intervenor. Respondent apparently did not consider petitioner’s

education or lack of involvement in family finances, even though

(1) all facts and circumstances are to be considered in applying

section 6015(f), sec. 6015(f)(1); and (2) a taxpayer’s level of

education and lack of involvement in family finances are well-

established considerations in determining what a taxpayer knows

or had reason to know, Bliss v. Commissioner, 59 F.3d 374, 378

(2d Cir. 1995), affg. T.C. Memo. 1993-390; Guth v. Commissioner,

897 F.2d 441, 444 (9th Cir. 1990), affg. T.C. Memo. 1987-522.

We conclude that the record shows that at the times the

returns were filed petitioner expected intervenor to pay the

Murrays’ taxes after their returns were filed.

d. The Lien on the Murrays’ House and the Bankruptcy

Respondent contends that petitioner knew or had reason to

know intervenor would not pay his taxes because respondent took
 - 18 -

the proceeds on the sale of the Murrays’ house in mid-1997, and

petitioner and intervenor filed for bankruptcy in September 1997.

We disagree. Intervenor misled petitioner about his intentions

to pay their taxes. Any knowledge about intervenor’s intent to

pay his taxes that petitioner gleaned from her discovery of the

tax liens on the Murrays’ house and their bankruptcy filing

occurred after the Murrays filed the last of the returns for the

years in issue in April 1997.7

e. Conclusion

We conclude that this factor favors petitioner.

7. Whether the Underpayment of Tax Is Attributable to
Intervenor

Respondent concedes that the underpaid tax is solely

attributable to intervenor. This factor favors petitioner.

8. Legal Obligation To Pay Tax

The fact that the nonrequesting spouse has a legal

obligation pursuant to a divorce decree or agreement to pay the

outstanding liability favors granting relief. Rev. Proc. 2000-

15, sec. 4.03, 2000-1 C.B. at 448. In the property settlement

signed in June 1998, intervenor agreed to pay community debts,

which include the taxes from which petitioner seeks relief from

liability.

7
The administrative record does not show that respondent
took the proceeds on the sale of the Murray’s house in mid-1997
before the Murrays filed their 1996 tax return around Apr. 15,
1997.
 - 19 -

Respondent contends that, even if the nonrequesting spouse

has a legal obligation pursuant to a divorce decree or agreement

to pay the outstanding tax, this factor does not favor petitioner

because she had reason to know when she signed the divorce decree

that intervenor would not pay the tax due. We disagree.

Respondent provides no grounds to suggest that the settlement

agreement is not fully enforceable against intervenor by

petitioner. We conclude that this factor favors petitioner.

9. Other Factors

The list of factors in Rev. Proc. 2000-15, sec. 5, 2000-1

C.B. at 448-449, is not intended to be exhaustive. Id.

Petitioner did not participate in any wrongdoing. The problem

originated with intervenor, who failed to make tax payments while

misrepresenting to petitioner that he would make those payments

as required. Equitable relief is more likely to be appropriate

where concealment, overreaching, or other wrongdoing on the part

of the nonrequesting spouse is present. Hayman v. Commissioner,

992 F.2d 1256, 1262 (2d Cir. 1993), affg. T.C. Memo. 1992-228.

D. Conclusion

Petitioner has presented a strong case for relief from joint

liability under factors promulgated by the Commissioner in Rev.

Proc. 2000-15, sec. 4.03.8 All of the factors either favor

8
The Commissioner ordinarily will grant relief from joint
liability under sec. 6015(f) where a liability reported in a
(continued...)
 - 20 -

petitioner or are neutral. We conclude that respondent’s denial

of relief under section 6015(f) was an abuse of discretion, and

that, on the basis of all the facts and circumstances, it would

be inequitable to hold petitioner liable for the underpayment of

taxes for 1992-96.

A final procedural note. Respondent contends that we may

consider only the administrative record in deciding this case.

We stated our Court’s position on that issue at Ewing v.

Commissioner, 122 T.C. 32, 44 (2004) (In exercising our

jurisdiction under section 6015(e)(1)(A) “to determine” whether a

taxpayer is entitled to relief under section 6015(f), it is

appropriate for this Court to consider the evidence admitted at

trial), vacated on other grounds 439 F.3d 1009 (9th Cir. 2006).

However, we need not consider respondent’s contention further

because it is clear that petitioner prevails (and that all

8
(...continued)
joint return is unpaid and the requesting spouse: (1) Is no
longer married to the nonrequesting spouse; (2) had no knowledge
or reason to know that the tax would not be paid; and (3) will
suffer economic hardship if relief is not granted. Rev. Proc.
2000-15, sec. 4.02, 2000-1 C.B. at 448. Those circumstances are
present here; however, for completeness, we have considered all
of the facts and circumstances. Sec. 6015(f)(1).
 - 21 -

factors favor petitioner or are neutral) whether or not our

determination is limited to matter contained in respondent’s

administrative record.

To reflect the foregoing,

Decision will be

entered for petitioner.