Porter v. Comm'r

Wherry, J.,

concurring in the result: I agree with the majority’s designated scope of review but write separately to urge the adoption of a matching standard of review when the merits of this case are decided.1 The majority concludes that the Administrative Procedure Act, 5 U.S.C. secs. 551-559, 701-706 (2000), does not control and that our scope of review in this case allows us to look beyond the administrative record. The majority then correctly notes that the Court has historically applied an abuse of discretion standard of review in determining whether relief is warranted. See Butler v. Commissioner, 114 T.C. 276, 291-292 (2000); see also Fernandez v. Commissioner, 114 T.C. 324, 332 (2000). However, notwithstanding the caselaw cited by the majority regarding the standard of review, section 6015(e) itself provides no basis for the imposition of that deferential standard of review in any section 6015 case.2

Given that the recent amendment to section 6015(e), Tax Relief and Health Care Act of 2006, Pub. L. 109-432, div. C, sec. 408(a), (c), 120 Stat. 3061, 3062, resolves any lingering doubts regarding our jurisdiction over section 6015(f) cases, it is appropriate to revisit the issues of the scope and standard of review to be used in determining whether such relief is warranted. Moreover, because section 6015(e) grants us the authority to determine, whether relief is warranted under section 6015(b), (c), and (f), we look to subsection (e), rather than to subsection (f), in order to determine the appropriate scope and standard of review in section 6015 cases. Section 6015(e) provides in relevant part as follows:

SEC. 6015(e). Petition for Review by Tax Court.
(1) In GENERAL. — In the case of an individual against whom a deficiency has been asserted and who elects to have subsection (b) or (c) apply, or in the case of an individual who requests equitable relief under subsection (f)—
(A) In general. — In addition to any other remedy provided by law, the individual may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed * * *.
[Emphasis added.]

I agree with the majority that the use of the word “determine” suggests that Congress intended for us to use a de novo scope of review in determining the appropriateness of relief under section 6015(f). In other instances where the word “determine” or “redetermine” is used, such as in sections 6213 and 6512(b), the Court applies a de novo scope of review and standard of review. If, as the majority notes, the use of the word “determine” in section 6015(e) suggests a de novo scope of review, why does it not also suggest a de novo standard of review?

Importantly, nothing in section 6015(e) suggests that Congress intended for us to use an abuse of discretion standard of review, despite the fact that, in similar circumstances, Congress has shown that it knows how to limit our standard of review when it wants to. See sec. 6404(h) (providing the Court with jurisdiction “to determine whether the Secretary’s failure to abate interest * * * was an abuse of discretion” (emphasis added)).3 In amending section 6015(e), Congress gave us jurisdiction over section 6015(f) cases without any such limitation.4

An abuse of discretion standard of review is also at odds with our decision to decline to remand section 6015(f) cases to the Secretary for reconsideration. Friday v. Commissioner, 124 T.C. 220, 222 (2005). Section 6330 is analogous to section 6015(f) insofar as both sections consider economic hardship as a factor in determining whether relief is appropriate. In section 6330(d)(2), Congress provided that the Internal Revenue Service Office of Appeals would retain jurisdiction over collection cases to allow it to consider changes in the taxpayers’ circumstances. The fact that Congress did not include a similar provision in section 6015 is consistent with the recent amendment to section 6015(e)(1) that allows the Court to determine whether relief for taxpayers under section 6015(f) is appropriate. See Friday v. Commissioner, supra at 222 (“There is in section 6015 no analog to section 6330 granting the Court jurisdiction after a hearing at the Commissioner’s Appeals Office.”).

Finally, it is noteworthy that section 6015(e)(1), which addresses our jurisdiction over requests for innocent spouse relief, applies to subsections (b), (c), and (f). The Court applies a de novo scope and standard of review in determining whether relief is warranted under subsections (b) and (c). See, e.g., Alt v. Commissioner, 119 T.C. 306, 313-316 (2002) (applying the abuse of discretion standard of review only to section 6015(f), not subsection (b) or (c)), affd. 101 Fed. Appx. 34 (6th Cir. 2004). Because subsection (e) grants us jurisdiction to “determine the appropriate relief available” under subsections (b), (c), and (f), our scope and standard of review should be the same in all cases under section 6015. There is no reason to single out taxpayers seeking relief under subsection (f) for disparate treatment. Yet that is the consequence of a nonuniform standard of review in innocent spouse cases.

Colvin, Swift, Foley, Gale, Marvel, Goeke, and Kroupa, JJ., agree with this concurring opinion.

The majority denies respondent’s motion in limine to limit our review to the administrative record. The Court has not yet applied a standard of review because it has yet to address the merits of petitioner’s case.

In addition, although the terms “scope of review” and “standard of review” are sometimes used interchangeably, there is undoubtedly a difference between them. Our “scope of review” relates to what we will consider in determining whether the Commissioner committed an error. Our “standard of review” relates to how much, if any, deference to afford the Commissioner in determining whether an error was made.

It is unclear to me why the Court has adopted a deferential standard of review when addressing sec. 6015(f) even in the context of a petition for redetermination of a deficiency, a context in which our standard of review is normally unrestricted. See Butler v. Commissioner, 114 T.C. 276, 291-292 (2000).

That the Court has conducted de novo trials using an abuse of discretion standard of review under other circumstances sheds no light whatsoever on whether it should do so in this particular context. In addition, considering evidence that was not part of the administrative record while at the same time analyzing the agency’s decision for an abuse of discretion presents difficult conceptual problems.

Sec. 6404 was amended in a historical context similar to that in which Congress recently amended sec. 6015(e). Before statutory amendments in 1996, this Court lacked jurisdiction to determine whether interest abatement was warranted; whether a taxpayer warranted such relief was entirely within the discretion of the Secretary. See Beall v. United States, 336 F.3d 419, 425 (5th Cir. 2003). In 1996, Congress amended sec. 6404 to give us jurisdiction to determine whether interest abatement is warranted under an abuse of discretion standard of review. In amending sec. 6015(e) to provide unequivocally that we possess jurisdiction over sec. 6015(f) cases, Congress imposed no such limitation upon our standard of review.

See Franklin Natl. Bank v. New York, 347 U.S. 373, 378 (1954) (“We find no indication that Congress intended to make this phase of national banking subject to local restrictions, as it has done by express language in several other instances.”).