concurring: While I agree with the majority in concluding that our review is not limited to the administrative record, I write separately to emphasize the temporal requirement which, in my view, must be met to satisfy the evidentiary burden.
The majority holds:
that, when reviewing for abuse of discretion under section 6330(d), we are not limited by the Administrative Procedure Act (APA) and our review is not limited to the administrative record. The evidence in this case pertains to issues raised at the hearing. The [new] evidence in this case is relevant and admissible. [Majority op. p. 95.]
This conclusion should not be construed as sanctioning the dilatory introduction at trial of new facts or documents previously withheld and not produced at the Appeals hearing in order to justify reversal or remand of the Appeals or settlement officer’s determination. “It is the responsibility of the taxpayer to raise all relevant issues at the time of the prelevy hearing.” H. Conf. Rept. 105-599, at 266 (1998), 1998-3 C.B. 747, 1020; see Magana v. Commissioner, 118 T.C. 488, 493 (2002). “Taxpayers will be expected to provide all relevant information requested by Appeals, including financial statements, for its consideration of the facts and issues involved in the hearing.” Sec. 301.6330-1(e)(1), Proced. & Admin. Regs.
Nevertheless, pursuant to section 6330(d)(2), the Internal Revenue Service Office of Appeals retains jurisdiction of the collection action after the determination is made and a taxpayer may “apply for consideration of new information, make an offer-in-compromise, request an installment agreement, or raise other considerations at any time, before, during, or after the Notice of Intent to Levy hearing.” H. Conf. Rept. 105-599, supra at 266, 1998-3 C.B. at 1020. This Court should consider the entire record of the actions taken by the Appeals Office at the time it conducts its judicial review.
Consequently, where the Appeals officer has invited or requested relevant facts or documents from the taxpayer, before or at the collection hearing, and those facts or documents are not provided within a reasonable time, their attempted introduction as new evidence at trial may not establish an abuse of discretion. This could be the result because of the temporal requirement, even though an abuse of discretion might have been demonstrated had the documentation been timely produced before or at the collection hearing.
In the instant case, the Appeals officer’s failure to fairly consider evidence available at the hearing and to request and consider possible corroborating evidence (where petitioner’s and his accountant’s credibility was, in the Appeals officer’s mind, at issue), coupled with the failure to ascertain whether a material breach of the existing offer-in-compromise had occurred, constituted an abuse of discretion.
Cohen, Laro, Gale, Thornton, Haines, and Goeke, JJ., agree with this concurring opinion.