dissenting:1 Petitioner admittedly owed almost $1 million in back taxes and additions to tax. Respondent agreed to forgo collection of almost 90 percent of that amount in exchange for petitioner’s promise to pay the balance of $100,000 in 60 days and pay additional amounts if his future income exceeded certain levels.2 Respondent expressly conditioned his forbearance on petitioner’s timely compliance with tax filing and payment requirements over the next 5 years. The majority essentially concludes that, notwithstanding petitioner’s failures to (1) comply with the timely filing condition and (2) respond to at least three written requests demanding compliance, respondent may not declare petitioner in default and proceed to collect the compromised amount in accordance with the terms of the offer-in-compromise (oic). Along the way, the majority (1) eviscerates the Court’s holding in Magana v. Commissioner, 118 T.C. 488 (2002), regarding the matters we may properly address in a collection due process case, and (2) unwisely extends Ewing v. Commissioner, 122 T.C. 32 (2004), which involved the evidence we may consider in a proceeding involving section 6015(f) (“equitable” innocent spouse relief). Respectfully, we dissent.
I. Issues Regarding the Scope of Our Review
Before we address the substantive aspect of the majority opinion, we turn our attention to our concerns regarding procedure.
A. “Topical” Scope of Review
As the majority recognizes, majority op. p. 101, we held in Magana v. Commissioner, supra at 493, that, in reviewing determinations of the Commissioner under section 6330(d)(1) for abuse of discretion, “generally we consider only arguments, issues, and other matter that were raised at the collection hearing or otherwise brought to the attention of the Appeals Office.” See also sec. 301.6330-1(f)(2), Q&A-F5, Proced. & Admin. Regs, (taxpayer appealing the Commissioner’s determination may ask the court to consider only issues that were raised at the administrative hearing). The majority distinguishes Magana on the ground that “petitioner is not raising a new issue in his petition.” Majority op. p. 102. As far as it goes, that is a true statement: Neither in the petition nor, previously, in his dealings with the Appeals Office did petitioner raise the issue of “material breach” (the majority does that on its own). The majority overcomes that obstacle by broadly framing the issue as “compliance with the terms of the offer-in-compromise”, id., which, by implication, encompasses both actual (strict) compliance (petitioner’s position) and deemed (substantial) compliance (the majority’s position).
The majority’s expansive characterization of the contract issue in this case is simply another way of saying that there is more than one possible argument in support of petitioner’s claim that the OIC remained in force. Petitioner argued to the Appeals officer that the OIC remained in force because he had timely filed his 1998 return. He did not present to the Appeals officer the argument underlying the majority’s conclusion; viz., that the OIC remained in force because petitioner’s untimely filing of his 1998 return was not a material breach. As we stated in Magana v. Commissioner, supra at 493: “[Generally it would be anomalous and improper for us to conclude that respondent’s Appeals Office abused its discretion under section 6330(c)(3) in failing to grant relief, or in failing to consider arguments, issues, or other matter not raised by taxpayers or not otherwise brought to the attention of respondent’s Appeals Office.” It is indeed anomalous and improper for the majority to conclude that respondent’s Appeals Office abused its discretion in this case for failing to consider an argument not brought to its attention.
B. Evidentiary Scope of Review
1. Unwarranted Extension of Ewing v. Commissioner
In Ewing v. Commissioner, supra (a report reviewed by the Court pursuant to section 7460(b)), the Court held that, in determining whether the Commissioner has abused his discretion in denying “equitable” innocent spouse relief under section 6015(f), the Court is not limited to a review of the administrative record; i.e., the petitioning taxpayer is entitled to a trial de novo. The Commissioner had argued that we are so limited “pursuant to the Administrative Procedure Act (apa), 5 U.S.C. secs. 551-559, 701-706 (2000) and cases decided thereunder”.3 Id. at 35.
Although the Court disagreed with the Commissioner’s APA argument, id. at 36, it based its holding largely on the language and structure of section 6015. Specifically, the Court focused on the similar language in section 6015(e)(1)(A) (jurisdiction to “determine” the appropriate relief under section 6015) and sections 6213 and 6214(a) (jurisdiction to “redetermine” deficiencies asserted by the Commissioner, which proceedings unquestionably are conducted on a de novo basis). Id. at 38-39. The Court also reasoned that, inasmuch as a section 6015(f) claim (1) does not necessarily involve the review of discretionary action on the part of the Commissioner, see sec. 6015(e)(l)(A)(i)(II), (2) may be raised as an affirmative defense in an otherwise de novo deficiency proceeding, see, e.g., Butler v. Commissioner, 114 T.C. 276, 287-288 (2000), and (3) may involve the intervention of a third party (i.e., the nonrequesting spouse) who may not have participated in the administrative proceeding, see sec. 6015(e)(4), Congress likely intended a uniform, de novo scope of review to apply to such claims. See Ewing v. Commissioner, supra at 42-43.
In the instant case, despite the lack of any reference to the APA in respondent’s opening brief, the majority frames the issue regarding the appropriate scope of review as follows: “Applicability of the APA Judicial Review Provisions to Tax Court Proceedings Commenced Under Section 6330(d)”. Majority op. p. 95. The ensuing discussion in the majority opinion is based primarily on Judge Thornton’s concurring opinion in Ewing v. Commissioner, supra at 50-56, which focuses exclusively on the apa issue. The majority loses sight of the fact that, in Ewing, a substantial portion of the Court’s analysis, as discussed above, was based on the unique aspects of section 6015. The majority’s extension of Ewing to section 6330 cases is both unwarranted and uncritical.
2. Additional Criticism of the Majority’s Scope of Review Analysis
In our dissenting opinion in Ewing v. Commissioner, 122 T.C. at 56-67 (Halpern and Holmes, JJ., dissenting), we discussed at some length our view that, in the context of our “review” jurisdiction, see id. at 56 n.1 and accompanying text, the appropriate evidentiary scope of review is the administrative record. See, e.g., Camp v. Pitts, 411 U.S. 138, 142 (1973) (in reviewing agency action for abuse of discretion, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court”); United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963) (the terms “arbitrary” and “capricious” “have frequently been used by Congress and have consistently been associated with a review limited to the administrative record”). While we see no need to repeat here our entire analysis in support of that view,4 we do address certain difficulties with the majority’s scope of review analysis in this case.
a. Prior Section 6330 Cases in This Court
The majority cites five Memorandum Opinions of this Court in support of the statement that “[a]t trials under section 6330 when reviewing for abuse of discretion, the Court has received into evidence testimony and exhibits that were not included in the administrative record.” Majority op. p. 95. None of those opinions addresses the issue in this case; i.e., whether it is appropriate for the Court to go beyond the administrative record in a section 6330 case. The majority also cites three additional Memorandum Opinions of this Court in which “we * * * noted the taxpayer’s failure to present evidence at trial.” Majority op. p. 96 n.4. Again, none of those opinions addresses the issue of whether it is appropriate for the Court to consider matters beyond the administrative record in a section 6330 case.
The majority also cites and quotes an unpublished opinion of the Court of Appeals for the Ninth Circuit affirming one of the aforementioned cases. Majority op. pp. 95-96; see Holliday v. Commissioner, 91 AFTR 2d 2003-1338, 2003-1 ustc par. 50,358 (9th Cir. 2003), affg. T.C. Memo. 2002-67. That court did devote two sentences to the “scope of review” issue. Specifically, the Court of Appeals stated that the “record review” provisions of the APA do not apply to the Tax Court.5 The Court of Appeals provided the following citation in support of that statement: “See 5 U.S.C. § 504(a)(1) (apa does not apply where £a matter [is] subject to a subsequent trial of the law and the facts de novo in a court’).” apa section 554, to which the Court of Appeals presumably was referring, provides rules governing agency adjudications “required by statute to be determined on the record after opportunity for an agency hearing” — i.e., formal agency adjudications. APA section 554(a)(1) simply provides that, notwithstanding the general scope of APA section 554, that section (as opposed to the entire apa) does not apply if the matter is subject to a subsequent trial de novo. In other words, the agency adjudication of such a matter need not conform to the “formal” procedural rules set forth in apa section 554. As section 6330 administrative adjudications are not “required by statute to be determined on the record”, it follows that APA section 554, including the “de novo” exception of APA section 554(a)(1), is altogether inapplicable to section 6330 proceedings.
b. Analogy to Deficiency Proceedings
Distilled to its essence, this portion of the majority’s analysis proceeds from two major premises and one minor premise. The major premises are: (1) Our de novo deficiency procedures were well established before the enactment of the APA in 1946; and (2) Congress did not intend to disturb those existing procedures when it enacted the APA. We have absolutely no quarrel with either of those premises. By definition, then, the judge-made record rule, which is generally applicable to judicial review of agency action, does not apply to deficiency proceedings in this Court. The majority’s conclusion that the record rule is inapplicable to our section 6330 cases as well is based on the minor premise that section 6330, enacted in 1998, is “part and parcel” of the “specific statutory framework for reviewing determinations of the Commissioner” (i.e., our de novo deficiency procedures) that Congress did not intend to disturb in 1946. See majority op. pp. 97-98. It is that minor premise that we are unable to accept. Cf. Ewing v. Commissioner, supra at 64 n.11, 65-66 (Halpern and Holmes, JJ., dissenting).
c. Section 6330 Hearings as Informal Adjudications
Here the majority seems to imply that only formal agency adjudications (i.e., those subject to the procedures set forth in APA sections 554, 556, and 557) are subject to the record rule. According to the Supreme Court, however, the record rule is no less applicable to judicial review of informal agency action. See, e.g., Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). In the event the administrative record of such an informal proceeding is insufficiently developed, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Id.) see also United States v. Carlo Bianchi & Co., 373 U.S. at 718 (remand “would certainly be justified where the department had failed to make adequate provision for a record that could be subjected to judicial scrutiny”).
d. Other Instances Where the Court Reviews for Abuse of Discretion
The majority notes that the Court “ ‘has a long tradition of providing trials when reviewing the Commissioner’s determinations under an abuse of discretion standard.’” Majority op. p. 100 (quoting Judge Thornton’s concurring opinion in Ewing v. Commissioner, 122 T.C. at 53). In our Ewing dissent, we suggested (on the basis of language in Estate of Gardner v. Commissioner, 82 T.C. 989, 999, 1000 (1984)) that our application of an abuse of discretion standard is properly the subject of a trial de novo when the exercise of discretion at issue is relevant to the Commissioner’s determination of the existence or amount of a deficiency in tax or an addition to tax that is subject to our deficiency jurisdiction. See Ewing v. Commissioner, supra at 65-66 (Halpern and Holmes, JJ., dissenting). We continue to adhere to that view.6
The majority cites a number of cases decided under the abuse of discretion standard, stating that “[i]n none of these types of cases have we held * * * that we are limited to the administrative record.” Majority op. p. 101 (emphasis added). In three of the types of cases to which the majority alludes (involving section 482 reallocations, section 446 “clear reflection of income” determinations, and waivers of the former section 6659 addition to tax), the inapplicability of the record rule is consistent with the suggested approach discussed in the preceding paragraph. See Ewing v. Commissioner, supra at 65 (Halpern and Holmes, JJ., dissenting).
The other two types of cases cited by the majority involve declaratory judgments with respect to determinations of the Commissioner under section 7428 (tax-exempt status) and section 7476 (qualified status of retirement plans).7 De novo proceedings in those types of cases would be inconsistent with the approach we suggested in our Ewing dissent. Contrary to the majority’s assertion, we have limited our review to the administrative record in those types of cases. See Houston Lawyer Referral Serv., Inc. v. Commissioner, 69 T.C. 570, 577 (1978) (“To allow oral testimony * * * as to facts not otherwise in the administrative record to be introduced in evidence * * * in a section 7428 declaratory judgment proceeding would convert that proceeding from a judicial review of admini strative action to a trial de novo” and “would permit an applicant [for tax-exempt status] to withhold information from the Internal Revenue Service and then to introduce it before the Court”); Tamko Asphalt Prods., Inc. v. Commissioner, 71 T.C. 824, 837 (1979) (rejecting the argument of the taxpayer in a section 7476 proceeding “that it is entitled to a trial as in any other matter before this Court”, the Court reasoned that “[t]o permit extrinsic evidence, other than that present in the administrative record, would convert a declaratory judgment proceeding from a judicial review of an administrative determination to a judicial trial de novo”), affd. 658 F.2d 735 (10th Cir. 1981).
e. Disregard of District Court Cases
The District Courts of the United States have jurisdiction to hear section 6330 appeals involving taxes over which the Tax Court does not have jurisdiction. Sec. 6330(d)(1)(B). As far as we can tell, those courts have uniformly limited their review for abuse of discretion in such cases to the administrative record. See Muller v. Rossotti, 93 AFTR 2d 2004-1782, 1786-1787, 2004-1 USTC par. 50,239, at 83,495 (M.D. Tenn. 2004) (quoting United States v. Carlo Bianchi & Co., 373 U.S. at 714); Living Care Alternatives, Inc. v. United States, 93 AFTR 2d 2004-761, 764 n.2, 2004-1 USTC par. 50,167, at 83,249 n.2 (S.D. Ohio 2003); Hart v. United States, 291 F. Supp. 2d 635, 640 (N.D. Ohio 2003); Cmty. Residential Servs., Inc. v. United States, 91 AFTR 2d 2003-2190, 2190, 2003-1 USTC par. 50,458, at 88,339 (M.D.N.C. 2003) (citing Camp v. Pitts, 411 U.S. at 142-143); Dudley’s Commercial & Indus. Coating, Inc. v. United States, 292 F. Supp. 2d 976, 985 (M.D. Tenn. 2003) (citing Camp v. Pitts, supra at 142); Triad Microsys., Inc. v. United States, 90 AFTR 2d 2002-7332, 7334, 2003-1 USTC par. 50,106, at 87,030 (E.D. Va. 2002) (citing Camp v. Pitts, supra at 142); Carroll v. United States, 217 F. Supp. 2d 852, 858 (W.D. Tenn. 2002) (citing United States v. Carlo Bianchi & Co., supra at 714); Remole v. United States, 89 AFTR 2d 2002-1202, 1208, 2002-1 USTC par. 50,224, at 83,429 (C.D. Ill. 2001); MRCA Info. Servs. v. United States, 145 F. Supp. 2d 194, 198 (D. Conn. 2000) (quoting United States v. Carlo Bianchi & Co., supra at 714). The majority makes no mention of those cases. Are we to believe that Congress intended the appropriate scope of review in section 6330 cases to hinge on the type of tax involved? Certainly, the language of section 6330 suggests no such distinction.
II. The Contract Issue
The contract issue as framed by the majority (i.e., whether the OIC remained in effect despite petitioner’s failure to timely file his 1998 return) is more nuanced than the majority opinion leads one to believe. The majority oversimplifies what respondent was bargaining for, disregards the significance of the fact that respondent repeatedly offered petitioner the opportunity to cure his default, and assumes, without analysis, that the concepts of materiality and substantial performance are dispositive of the contract issue.
A. Materiality of Timely Filing Requirement
The majority assumes that the only benefit the Commissioner seeks when accepting an OIC is the actual receipt of moneys owed under its terms: “Respondent suffered no monetary damage from petitioner’s late filing of the 1998 return.” Majority op. p. 110 (emphasis added). But collecting money is not the Commissioner’s only purpose in agreeing to an OIC. The preamble to section 301.7122-1, Proced. & Admin. Regs., explicitly refers to the IRS’s interest in promoting the voluntary compliance of taxpayers. T.D. 9007, 2002-2 C.B. 349, 350. Indeed, not only is this one of the policy underpinnings of the regulations; it can even be the basis by itself for accepting an oic. The timely filing requirement is particularly important to the IRS as a monitoring device with respect to OlCs, like the one here, which include future income level triggers that can result in additional payment obligations. See majority op. p. 87 n.3.
B. Opportunities To Cure
It is also important to emphasize how deliberate the IRS was before declaring the OIC in default. Respondent did not default petitioner’s OIC as soon as he realized the 1998 return had not been timely filed. Following the guidance of 2 Administration, Internal Revenue Manual (cch) (irm), sec. 5.19.7.3.22.5, at 18,513, respondent first contacted petitioner to request the missing return and did so at least two more times thereafter. See majority op. p. 89. Those efforts by respondent were in keeping with the mandate of the IRM that in the event of potential default efforts “will be made to secure compliance”. IRM sec. 5.8.9.4, at 16,382. Despite those efforts, petitioner did not provide the missing return until approximately 1 year after he was first requested to do so. That hardly qualifies as a “foot fault”.
C. Doctrine of Express Conditions
Regardless of the nature of the breach and respondent’s response thereto, we think that the most relevant doctrines of contract law are not “substantial performance” and “material breach.”8 Petitioner’s obligation to timely file all his returns for 5 years was an express condition and so, as a general rule, is subject to strict performance. See Calamari & Perillo, The Law of Contracts, sec. 11.9, at 403 (4th ed. 1998); 13 Williston on Contracts, sec. 38:6, at 384-385 (4th ed. 2000). The relevant question should be whether there is an “excuse of conditions” that may apply. Under that doctrine, petitioner would have to show that (1) strict compliance with the timely filing condition would result in an extreme forfeiture or penalty, and (2) timely filing was not an essential part of the bargain. See 2 Restatement, Contracts 2d, sec. 229 (1981); 1 Restatement, Contracts, sec. 302 (1932). If we are going to say that, as a matter of law, the Appeals officer should not have enforced the oic in accordance with its terms, that is the line of inquiry we should pursue.9
D. United States v. Lane
Quite apart from any discussion of general contract law principles, we also disagree with the majority’s treatment of the most similar case we have found, United States v. Lane, 303 F.2d 1 (5th Cir. 1962). In Lane, the Court of Appeals rejected the taxpayer’s argument that strict enforcement of his oic would result in a forfeiture. As had petitioner, the taxpayer had entered into an OIC which required him to pay a specific amount, pay additional amounts if his annual income exceeded a floor, and make annual statements of his income “regardless of amount”. The taxpayer paid the specific amount and then failed to make the annual statements of his income. The taxpayer’s Oic provided, like petitioner’s, that, in the event of default, the Commissioner could revive and collect the unpaid balance of the original debt. The District Court, ruling in favor of the taxpayer, had reasoned that “ ‘the taxpayer can’t be pushed back for years and years and after a settlement is made and have a forfeiture so to speak, of everything he paid in under that settlement agreement.’” Id. at 4.
The Court of Appeals for the Fifth Circuit reversed the District Court, holding that the oic should be enforced as written. Id. at 5. It is worth considering the Court of Appeals’ forceful language in that regard:
In the present case, the contracting parties expressed their mutual intention in clear and unmistakable terms. * * * [The OIC] expressly provided that the Commissioner, upon default by the taxpayer could terminate the compromise agreement and proceed to collect the unpaid balance of the original tax liability. This language is so precise, and the intention which it manifests is so evident, as to leave no doubt that the course of action taken by the Government here was fully authorized by the compromise agreement.
There was nothing illegal, immoral or inequitable in the compromise agreement. It did not provide for any “forfeiture”. By express provision, the amounts to be paid under the compromise agreement * * * could not exceed the aggregate amount which the taxpayer conceded that he owed the Government from the start. By allowing the Government to revive the taxpayer’s original liability, the taxpayer will not forfeit the amounts he has already paid, for those amounts will be applied to reduce the original liability. The agreement was precise, it was fair, and it was freely consented to by the taxpayer. There is no reason why it should not be enforced as written.
Id. at 4; see also Roberts v. United States, 225 F. Supp. 2d 1138, 1149 (E.D. Mo. 2001) (quoting the latter paragraph in full).
III. Conclusion
We would sustain respondent’s evidentiary objections on the basis of Magana v. Commissioner, 118 T.C. 488 (2002), and the record rule. We would also hold that, in light of petitioner’s breach of an express condition of the OIC and his failure to cure that breach despite ample opportunity to do so, respondent’s Appeals officer did not abuse his discretion in sustaining the proposed collection activity.
Seventeen judges voted in conference on Judge Vasquez’s report in this case. Including Judge Vasquez, six judges agree fully with the report, while eight concur in the result but take exception to one or more of the report’s particulars. Since we do not have a full exposition of the exceptions, we are unable to say exactly how strong the conference agreement is on any of the particulars of the report. We will assume, however, that a majority could be marshaled for each of the particulars we address here, and will refer to the “majority” in discussing those particulars.
As part of the agreement, petitioner also waived the period of limitations on collection.
As we discussed in our dissenting opinion in Ewing v. Commissioner, 122 T.C. 32, 57-59 (2004) (Halpem and Holmes, JJ., dissenting), the issue regarding the applicability of the APA is a red herring. The issue in Ewing was whether our review of the Commissioner’s denial of sec. 6015(f) relief is subject to the record rule — the general rule of administrative law that a court can engage in judicial review of an agency action only on the basis of the record amassed by the agency. See id. at 56, 58. The record rule predates, and indeed is not codified in, the APA. Id. at 58 n.4.
We do note that, in our Ewing dissent, we addressed much of the authority relied on by the majority here in its scope of review analysis. See, e.g., Ewing v. Commissioner, supra at 60-61 (Halpern and Holmes, JJ., dissenting) (criticizing O’Dwyer o. Commissioner, 266 F.2d 575 (4th Cir. 1959), affg. 28 T.C. 698 (1957)); id. at 60 n.7 (explaining the context of Nappi v. Commissioner, 58 T.C. 282 (1972)); id. at 61 n.9 (explaining the context of Bowen v. Massachusetts, 487 U.S. 879, 903 (1988), and Beall v. United States, 336 F.3d 419 (5th Cir. 2003)); id. at 64 n.11 (discussing APA sec. 559); id. at 65-66 (distinguishing Thor Power Tool Co. v. Commissioner, 439 U.S. 522 (1979), Bausch & Lomb, Inc. v. Commissioner, 933 F.2d 1084 (2d Cir. 1991), affg. 92 T.C. 525 (1989), and Krause v. Commissioner, 99 T.C. 132 (1992), affd. sub nom. Hildebrand v. Commissioner, 28 F.3d 1024 (10th Cir. 1994)).
As noted earlier, see supra note 3, the record rule predates, and is not codified in, the APA. See also Ewing v. Commissioner, 122 T.C. at 60 n.8 and accompanying text (Halpem and Holmes, JJ., dissenting).
The fact that our application of an abuse of discretion standard may be the subject of a trial de novo does not necessarily mean that we are free to substitute our judgment for that of the Commissioner in such cases. See, e.g., Capitol Fed. Sav. & Loan Association v. Commissioner, 96 T.C. 204, 209 (1991) (sec. 446); Bausch & Lomb, Inc. v. Commissioner, 92 T.C. 525 (1989), affd. 933 F.2d 1084 (2d Cir. 1991) (sec. 482).
Separately, the majority cites two Memorandum Opinions of this Court in support of the proposition that “[t]he Court has consistently conducted trials on the issue of whether the Commissioner’s denial of a request to abate interest under section 6404 was an abuse of discretion.” Majority op. p. 100. In neither case did the Court address the issue of the appropriate scope of review. Although the issue is not before us today, we would conclude that, for the same reasons discussed herein and in our Ewing dissent, our review of the Commissioner’s interest abatement determinations is not properly the subject of de novo proceedings. See Ewing v. Commissioner, 122 T.C. at 65 n.12 (Halpern and Holmes, JJ., dissenting).
While the majority assumes that Arkansas law governs the contract issue, it is quite possible that, under principles set forth in Clearfield Trust Co. v. United States, 318 U.S. 363, 366-367 (1943), and United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-729 (1979), the Federal common law of contracts is the appropriate choice of law. See Saltzman, IRS Practice and Procedure, par. 15.03[4][b], at 15-82 n.200 (rev. 2d ed. 2002).
We are aware of authority indicating that, in the context of an executory accord (which an offer-in-compromise resembles), enforcement of the original obligation is justified only if the obligee’s noncompliance with the accord is material. See Frank Felix Associates, Ltd. v. Austin Drugs, Inc., 111 F.3d 284, 286-289 (2d Cir. 1997) (reasoning at 287 that, under a rule requiring strict compliance with the accord, the obligee “could obtain payment of a contested debt and, due to a minor breach of the accord, receive the windfall entitlement to reassert its pre-settlement claims” (Emphasis added.)). We are not aware of any authority addressing the interplay between that line of reasoning and the doctrine of express conditions. Again, if we are going to undertake a substantive analysis of contract law, those are the types of issues we should be addressing.