dissenting: I respectfully dissent from the majority opinion, which abandons the abuse-of-discretion standard for the Court’s review of the IRS’ denial of relief under section 6015(f) and adopts in its place a “de novo” standard of review. In so doing, the majority departs from the better reading of the statute and from very substantial precedent.
I. By Conferring Discretion on the Secretary, Section 6015(f) Calls for the Court To Review the Secretary’s Actions for Abuse of That Discretion.
A. Section 6015(f) Confers Discretion on the Secretary
Section 6015(f) provides that “the Secretary may relieve such individual of such liability”. (Emphasis added.) Four features of section 6015 show that this language confers discretion on the Secretary: First, “The word ‘may’ customarily connotes discretion”.1 Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 346 (2005). Second, section 6015(f), rather than simply providing a rule, expressly names an official (“the Secretary”) to apply its rule. Most provisions in the Internal Revenue Code simply state a rule and do not repeat in each instance the truism2 that it will be the Commissioner who applies that rule on behalf of the Government. It is therefore a departure from the norm when a statutory provision does name an official to apply the rule— e.g., by stating that “the Secretary may” impose a given treatment,3 or that “[t]he Secretary may waive” a certain provision,4 or that a given treatment shall obtain when it is appropriate “in the opinion of the Secretary”,5 or that a determination of an issue will be made by some specified subordinate of the Secretary.6 When a statute thus explicitly names the agency decision-maker, this is a further indication7 that the matter is committed to his or her discretion. This ought to be considered a particularly strong indication where, as with section 6015(f), that feature of the statute contrasts with its neighboring provisions, i.e., subsections (b) and (c).8 If we level these distinctions and find that all the forms of relief under section 6015 have the same standard of review, notwithstanding their different vocabulary, then we ignore the Congress’ use of distinctive language in the various subsections.
Third, section 6015(e) contrasts the discretionary character of section 6015(f) (under which one is said to “request” relief) with the nondiscretionary character of subsections (b) and (c) (under which one is said to “elect” relief).9 A benefit that may be “elected” is one’s right; but a benefit that must be “requested” invokes the discretion of one who may or may not grant the benefit.10
Fourth, the pertinent language in section 6015(f) is identical to discretionary language in a companion provision, section 66(c) (which grants analogous relief for liability from tax on community income). The same 1998 amendment that created section 6015(f) also added an “equitable relief” provision as the last sentence of section 66(c) (emphasis added):
Under procedures prescribed by the Secretary, if, taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either) attributable to any item for which relief is not available under the preceding sentence, the Secretary may relieve such individual of such liability.
The language emphasized above is identical to language added by the same amendment to section 6015(f).11 When reviewing IRS action under this provision in section 66(c), we have reviewed for abuse of discretion. See Bernal v. Commissioner, 120 T.C. 102, 107 (2003); Morris v. Commissioner, T.C. Memo. 2002-17; Beck v. Commissioner, T.C. Memo. 2001-198. If this language in section 66(c) granted discretion to the IRS, then the identical language in section 6015(f), enacted at the same time, must have done the same.
B. When a Statute Confers Discretion on an Agency, a Court Reviewing Agency Action Must Defer to That Discretion and Review It Only for Abuse.
The majority acknowledges that section 6015(f) confers discretion on the Secretary,12 but it then denies that we review the IRS’ action for abuse of that discretion, insisting rather that we review “de novo”, without enhanced deference to the agency’s decisionmaking. This conception denudes that “discretion” of any effect and contradicts the essence of discretion being granted to an agency. If a Code provision that grants no discretion yields de novo review of an agency’s determination, and a Code provision that does grant discretion yields the same de novo review, then the discretion is illusory. The majority’s approach effectively relegates the agency’s discretion to being relevant only to the agency that exercises it and overlooks that discretion when the agency’s action is being reviewed.
Contrary to that approach, it is when agency action is being judicially reviewed that a grant of discretion has its significance. Of course, this Court can properly employ an abuse-of-discretion standard to review IRS action only where the Code has conferred discretion on the IRS. By the same token, where discretion has in fact been conferred, the only proper review is for abuse of that discretion.13 The majority pays lip service to the grant of discretion in section 6015(f) but then overlooks that discretion with its de novo review.
II. Abandoning the Abuse-of-Discretion Standard Contradicts Uniform Precedent.
The majority acknowledges, majority op. p. 206, that “[w]e have generally reviewed the Commissioner’s denial of relief under section 6015(f) for abuse of discretion”, and it appropriately cites Butler v. Commissioner, 114 T.C. 276 (2000), in which we held that this Court had jurisdiction over section 6015(f) and that the standard of review in a section 6015(f) case is for abuse of discretion. Butler so held (as the majority states, majority op. p. 207) “because of the discretionary language in section 6015(f)” (i.e., “the Secretary may relieve” (emphasis added)).
The abuse-of-discretion standard for reviewing denial of relief under section 6015(f) was employed again in Cheshire v. Commissioner, 115 T.C. 183, 197-198 (2000), affd. 282 F.3d 326 (5th Cir. 2002), which the Court of Appeals for the Fifth Circuit affirmed, stating:
Section 6015(f) confers power upon the Secretary and his delegate, the Commissioner, to grant equitable relief where a taxpayer is not entitled to relief under § 6015(b) or (c), but “taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either).” In this case, Appellant argues that the Commissioner improperly denied her equitable relief with respect to the retirement distributions and the interest income. This court reviews the Commissioner’s decision to deny equitable relief for abuse of discretion. [282 F.3d at 338; emphasis added; fn. refs, omitted.]
Similarly, in Mitchell v. Commissioner, T.C. Memo. 2000-332, affd. 292 F.3d 800 (D.C. Cir. 2002), we held, and the Court of Appeals for the D.C. Circuit affirmed, that the Commissioner had not abused discretion in denying section 6015(f) relief. In affirming the use of the abuse-of-discretion standard, the Court of Appeals relied on the language of section 6015(f) and stated:
As the decision whether to grant this equitable relief is committed by its terms to the discretion of the Secretary, the Tax Court and this Court review such a decision for abuse of discretion. See Flores v. United States, 51 Fed. Cl. 49, 51 & n. 1 (2001); Butler, 114 T.C. at 291-92. We conclude that there was no such abuse, for the reasons given by the Tax Court in its decision * * *. [292 F.3d at 807; emphasis added.]
In Mitchell the Court of Appeals thus cites, inter alia, Flores v. United States, 51 Fed. Cl. 49, 51 & n.l (2001), in which the Court of Federal Claims stated that it “has jurisdiction to review whether the Commissioner has abused his discretion under section 6015(f)”. Again, in Neal v. Commissioner, 557 F.3d 1262, 1263 (11th Cir. 2009), affg. T.C. Memo. 2005-201, where “[b]oth parties agree[d] that the Tax Court appropriately used an abuse of discretion standard of review”, the Court of Appeals for the Eleventh Circuit affirmed our holding that section 6015(f) calls for an abuse-of-discretion standard of review and a de novo scope of review. In unpublished opinions, the Courts of Appeals for the Third, Sixth, and Ninth Circuits have also affirmed the Tax Court’s use of the abuse-of-discretion standard for reviewing section 6015(f) cases. See Capehart v. Commissioner, 204 Fed. Appx. 618 (9th Cir. 2006) (citing Mitchell v. Commissioner, 292 F.3d 800 (9th Cir. 2006), affg. T.C. Memo. 2000-332), affg. T.C. Memo. 2004-268; Doyle v. Commissioner, 94 Fed. Appx. 949 (3d Cir. 2004) (citing Mitchell), affg. T.C. Memo. 2003-96; Alt v. Commissioner, 101 Fed. Appx. 34 (6th Cir. 2004), affg. 119 T.C. 306 (2002).
This Court’s above-cited opinions in Butler, Cheshire, Mitchell, and Neal were decided before the 2006 amendments to which the majority attaches importance and which are discussed below; but for the current point it is sufficient to observe that even after that amendment, this Court has consistently used the abuse of discretion standard.14 See Stolkin v. Commissioner, T.C. Memo. 2008-211; Alioto v. Commissioner, T.C. Memo. 2008-185; Nihiser v. Commissioner, T.C. Memo. 2008-135; Dunne v. Commissioner, T.C. Memo. 2008-63; Gonce v. Commissioner, T.C. Memo. 2007-328; Dowell v. Commissioner, T.C. Memo. 2007-326; Golden v. Commissioner, T.C. Memo. 2007-299, affd. 548 F.3d 487 (6th Cir. 2008); Billings v. Commissioner, T.C. Memo. 2007-234; Beatty v. Commissioner, T.C. Memo. 2007-167; Butner v. Commissioner, T.C. Memo. 2007-136; Banderas v. Commissioner, T.C. Memo. 2007-129; Ware v. Commissioner, T.C. Memo. 2007-112; Farmer v. Commissioner, T.C. Memo. 2007-74; Van Arsdalen v. Commissioner, T.C. Memo. 2007-48.
Thus not only this Court but also the Courts of Appeals and the Court of Federal Claims have uniformly applied the abuse-of-discretion standard to review the Commissioner’s exercise of the discretion granted to him by the terms of section 6015(f), and until today no court has held otherwise. Indeed, today’s majority opinion is at odds with this Court’s prior Opinion issued less than a year ago in this very case, Porter v. Commissioner, 130 T.C. 115, 122 — 123 (2008) (Porter I), in which we defended the use of an abuse-of-discretion standard of review with a de novo record scope of review. The Court did state in a footnote that “we need not decide any issue relating to the standard of review”, id. at 122, but the Opinion concludes with these words, id. at 125:
The measure of deference provided by the abuse of discretion standard is a proper response to the fact that section 6015(f) authorizes the Secretary to provide procedures under which, on the basis of all the facts and circumstances, the Secretary may relieve a taxpayer from joint liability. That approach (de novo review, applying an abuse of discretion standard) properly implements the statutory provisions at issue here and has a long history in numerous other areas of Tax Court jurisprudence.
In making its about-face, the majority does not state today that this Court erred in its original holding in Butler v. Commissioner, 114 T.C. 276 (2000), but says rather that in Butler “our adoption of an abuse of discretion standard was appropriate.” Majority op. p. 207.15 However, the majority has undertaken a “reconsideration” that was prompted by the 2006 amendments, to which we now turn.
III. The 2006 Amendment to Section 6015(e) Does Not Implicate the Abuse-of-Discretion Standard.
A. The Background to the 2006 Amendment
Before 2006, requests for section 6015(f) relief could arise in the Tax Court in various procedural contexts. Three of these — i.e.,
[1] as an affirmative defense in deficiency redetermination cases because of section 6213(a), [2] as a remedy on review of collection due process determinations because of section 6330(d)(1)(A), and [3] as relief in standalone petitions when the Commissioner has asserted a deficiency against a petitioner * * * [16]
—were not implicated in the jurisdiction controversy that arose in 2006. However, a fourth procedure is the so-called nondeficiency stand-alone petition. Where a joint tax return reports a tax liability that the joint taxpayers have not fully paid, and the IRS has not asserted a deficiency, one of the spouses might request relief from that joint liability and, if the relief is denied, might file a petition under section 6015(e)(1). Such nondeficiency stand-alone petitions became a subject of controversy because of language in the first sentence of section 6015(e)(1): “In the case of an individual against whom a deficiency has been asserted”. (Emphasis added.) This emphasized language had been added to section 6015(e)(1) in December 2000; and for any petitioner seeking section 6015(f) relief whose jurisdictional basis was section 6015(e), this 2000 amendment raised an obvious question whether the case could proceed in the absence of a deficiency’s having been asserted.
As is noted above, it was in Butler that we held that we would use an abuse-of-discretion standard to review the IRS’ denial of such relief. Butler itself was a deficiency suit brought pursuant to section 6213(a) by a claimant against whom a deficiency had been asserted, but its reasoning would apply to review of section 6015(f) relief however it arose. Butler was brought and decided before the 2000 amendment that provoked the particular controversy that produced the 2006 amendment on which the majority relies. In any event, cases like Butler — a deficiency suit under section 6213(a) brought by a petitioner who sought relief under section 6015(f) and against whom a deficiency had been asserted — were not implicated in this jurisdictional problem involving section 6015(e)(1).
On the basis of the language added to section 6015(e)(1) in 2000 (“against whom a deficiency has been asserted”), first the Ninth Circuit, in Commissioner v. Ewing, 439 F.2d 1109 (9th Cir. 2006), revg. 118 T.C. 494 (2002) and vacating 122 T.C. 32 (2004), and then the Eight Circuit, in Bartman v. Commissioner, 446 F.3d 785 (8th Cir. 2006), revg. in part T.C. Memo. 2004-93, held that we lacked jurisdiction under section 6015(e)(1) where no deficiency had been asserted against the taxpayer. The Tax Court accepted this analysis in Billings v. Commissioner, 127 T.C. 7 (2006) (Billings I),17 and implied that Congress should “identify] this as a problem and fix[ ] it legislatively”.
B. The Nature of the 2006 Amendment
Congress did identify and fix the problem. On June 15, 2006, Senators Feinstein and Kyi proposed an amendment that Senator Feinstein characterized as “only minor legislative modifications * * * [to] clarif[y] the statute’s original intent” and to “provide a straightforward and uncontroversial solution to the unfair treatment of innocent spouses under current law” that resulted after “[r]ecent decisions of the Eighth and Ninth Circuit Courts of Appeals” (i.e., Ewing and Bartman). 152 Cong. Rec. S5962-5963 (daily ed. June 15, 2006). Senator Kyi similarly explained that he sought “to clarify the jurisdiction of the U.S. Tax Court in cases involving 'equitable relief’ for innocent spouse claims.” Id. at S5963. Congress adopted their proposal and amended section 6015(e)(1) to read as follows, by adding the language that is emphasized here:18
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 * * *.
(It should be noted that, apart from the language emphasized, all the language quoted above was in the statute before 2006. In particular, the pre-2006 statute gave the Tax Court jurisdiction “to determine the appropriate relief” (emphasis added), and the 2006 amendments made no change to that terminology.)
C. The Inapplicability of the 2006 Amendment to This Case
The gist of the 2006 amendment was to add subsection (f) relief to the provision in section 6015(e) giving jurisdiction to the Tax Court. The amendment responded to court opinions holding that the Tax Court lacked jurisdiction over one category of section 6015(f) cases (nondeficiency stand-alone petitions). The express purpose of the 2006 amendment was to clarify Congress’ intent that the Tax Court should have jurisdiction to review all types of section 6015(f) cases. To do this, the 2006 amendment simply added a phrase to the existing provision of section 6015(e). It had no effect on the other types of section 6015(f) cases. It made no change to the discretionary language in section 6015(f).
The language and history of the 2006 amendment show that the amendment had nothing to do with the abuse-of-discretion standard. There is no hint in the legislative history that Congress intended to modify the long line of cases that had previously applied the abuse-of-discretion standard. Thus, after the amendment, we explained its purpose and effect in Billings v. Commissioner, T.C. Memo. 2007-234 (Billings II), and stated: “We are mindful that our review of that decision [to deny section 6015(f) relief] is for abuse of discretion. See Butler v. Commissioner, 114 T.C. 276, 287-292 (2000).” The 2006 amendment was simply a straightforward clarification of our jurisdiction.
In fact, the majority does not actually argue that the 2006 amendment made any change that drives their conclusion. Rather, the majority simply states that a “reconsideration” of our standard of review is “warranted” because of “Congress’ confirmation of our jurisdiction” in the 2006 amendments. Majority op. p. 208. The 2006 amendments thus appear to be not a justification but an occasion for the majority’s decision, and the specific arguments in support of that decision do not actually turn on any statutory language that was changed in 2006. We now turn to those specific arguments.
IV. Abandonment of the Abuse-of-Discretion Standard of Review for Section 6015(f) Cases Is Not Warranted by Any Feature of the Statute.
A. The Word “Determine” in Section 6015(e)
The majority opinion places great importance on the fact that amended section 6015(e) provides the Tax Court with jurisdiction “to determine the appropriate relief available to the individual under this section” (emphasis added) — language that existed before the 2006 amendment and that had been considered in Butler and all the cases after it that applied the abuse-of-discretion standard. The majority now asserts:
The use of the word “determine” suggests that Congress intended us to use a de novo standard of review as well as scope of review. In other instances where the word “determine” or “redetermine” is used, as in sections 6213 and 6512(b), we apply a de novo scope of review and standard of review. See Porter v. Commissioner, 130 T.C. at 118-119. [Majority op. p. 208.]
The cited passage in Porter I does discuss the significance of the word “determine” — albeit for its implications on the scope of review. However, when Porter I came to address the standard of review, it correctly argued at some length, see 130 T.C. at 122-123, for the compatibility of a de novo trial and a review for abuse of discretion. And it could hardly have done otherwise. Anyone who would argue that an abuse-of-discretion standard of review cannot be employed after a de novo trial will promptly confront the Supreme Court’s contrary holding in Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 533 (1979) (cited, of course, in Porter I), which approved precisely that regime. See also Ewing v. Commissioner, 122 T.C. at 40-41.
In fact, the word “determine” cannot have the significance that the majority infers for the issue of standard of review. The preeminent appearance of a form of the term “determine” is in our principal jurisdictional statute, which authorizes us to give a “redetermination of the deficiency.” Sec. 6213(a). In a deficiency suit, however, the standard of review may vary. See Rule 142. It may be that in most deficiency cases we do both conduct the trial de novo and decide the case “de novo”, imposing on the taxpayer only a normal burden of proof by the preponderance of the evidence and entertaining only a normal presumption that the Commissioner’s determination was correct. However, in some deficiency cases, we do review the Commissioner’s determination for an abuse of discretion. See, e.g., Thor Power Tool Co. v. Commissioner, supra. On the other hand, in some deficiency cases, the burden of proof is on the Commissioner, who must, for example, prove fraud by “clear and convincing evidence.” Rule 142(b). In our “redetermination” of a deficiency, we apply the burden of proof and the standard of review called for by the law applicable to the given case.
That the word “determine” does not at all preclude abuse-of-discretion review is made explicit in a statute on which, for a different point, the majority opinion expressly relies: section 6404(h) explicitly provides, “The Tax Court shall have jurisdiction * * * to determine whether the Secretary’s failure to abate interest under this section was an abuse of discretion”. (Emphasis added.) As it is used in the Internal Revenue Code, the word “determine” does not imply that an abuse-of-discretion standard of review should be abandoned in favor of “de novo” review.
B. The Comparison to Section 6404
The point that the majority derives from section 6404(h) is that, when Congress wants to impose an abuse-of-discretion standard, it knows how to do so. The majority observes, majority op. pp. 208-209, that when Congress granted jurisdiction for review of the IRS’ denial of interest abatement (suggested by the majority as analogous to Congress’ confirming jurisdiction in section 6015(e)(1)),19 it made explicit that we are to determine whether there “was an abuse of discretion”. Sec. 6404(h)(1). Clearly, section 6404(h)(1) is the high-water mark of congressional clarity on this issue of standard of review. However, there is a substantial body of caselaw calling for abuse-of-discretion review in instances where the statute does not include the phrase “abuse of discretion”.20 Manifestly, when Congress wants to impose an abuse-of-discretion standard, it has more than one way to do so. One way it may do so is to refer (as in section 6404(h)(1)) to “abuse of discretion”; but another is to provide (as in section 6015(f)) that “the Secretary may relieve such individual of such liability.” (Emphasis added.)
C. The Absence of the Possibility of Remand
The majority states that “[a]n abuse of discretion standard of review is also at odds with our decision to decline to remand section 6015(f) cases for reconsideration. Friday v. Commissioner, 124 T.C. 220, 222 (2005).” Majority op. p. 209. Tax jurisprudence would be simpler, and preferable to some, if each tax case called for either abuse-of-discretion review of an agency-level record with a possibility of remand to the agency, or else de novo decision based on a new trial record with no option of agency remand. This neat paradigm is compromised when our system calls for a decision to be based on an agency record but for the court to review the matter de novo,21 or when our system calls for a decision to be based on a trial de novo but for the court to review for an abuse of discretion22 — but that is what our system sometimes calls for. If the system would be improved by allowing the Tax Court to remand section 6015(f) cases to the IRS, then Congress will have to enact a “statutory provision[] reserving] jurisdiction to the Commissioner”. Friday v. Commissioner, 124 T.C. 220, 221 (2005) (denying remand of section 6015 cases).
D. The Comparison to Section 6015(b) and (c)
The majority opines that, since our jurisdiction to decide section 6015(f) cases has now been settled by the 2006 amendments, “there is no longer any reason to apply a different standard of review under subsection (f) than under subsections (b) and (c)”. Majority op. p. 210. In fact, as we have already shown, the relief provided in subsection (f) is materially different from the relief provided in subsections (b) and (c) — both in the language of those subsections (see supra note 8) and in the characterization of those forms of relief in section 6015(e) and its amendments made in 2006 (see supra note 9). The Court currently recognizes in Lantz v. Commissioner, 132 T.C. 131, 144 (2009), that Congress “intended that taxpayers have two kinds of remedies”— “traditional” and “equitable”. If indeed Congress intended subsection (f) to provide a distinct regime, with an equitable remedy to be “requested” rather than “elected”, it is perfectly consistent with that intention that it also intended us to review agency action for an abuse of discretion.
Under section 6015(f), “the Secretary may relieve” from joint liability; but when the Secretary denies such relief, and we review that decision under section 6015(e)(1)(A), we should review for an abuse of discretion. I would so hold.
Cohen, Wells, Foley, Thornton, and Morrison, JJ., agree with this dissenting opinion.The majority so acknowledges. Majority op. p. 207 (“Section 6015(f) provides that the Commissioner ‘may grant relief under certain circumstances, suggesting a grant of relief is discretionary.”)- See also Kirkendall v. Dept. of the Army, 479 F.3d 830, 870 (Fed. Cir. 2007); Lantz v. Commissioner, 132 T.C. 131, 146 (2009) (“section 6015(f), uses the discretionary term ‘may”’).
See see. 7801(a)(1) (“the administration and enforcement of this title shall be performed by or under the supervision of the Secretary of the Treasury”); sec. 7803(a)(2) (“The Commissioner shall have such duties and powers as the Secretary may prescribe, including the power to * * * administer, manage, conduct, direct, and supervise the execution and application of the internal revenue laws”).
See sec. 482; Dolese v. Commissioner, 82 T.C. 830, 838 (1984), affd. 811 F.2d 543, 546 (10th Cir. 1987).
See former sec. 6659(e); Krause v. Commissioner, 99 T.C. 132, 179 (1992), affd. sub nom. Hildebrand v. Commissioner, 28 F.3d 1024 (10th Cir. 1994).
See secs. 446(b), 471(a); Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532 (1979); see also Hernandez-Cordero v. U.S. INS, 819 F.2d 558, 566 & nn.18-24, 570 (5th Cir. 1987) (Rubin, J., dissenting) (appendix listing 169 sections in the United States Code “placing discretion in the opinion of the President, the Attorney General, or a Cabinet Secretary” with the language “in the opinion of”).
See sec. 6330(c)(3); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).
Admittedly, the naming of the official who makes that decision is not, by itself, an infallible marker that discretion has been granted to that official. Rather, for example, section 269(a) provides that “the Secretary may disallow” losses acquired in tax-motivated transactions, but the caselaw under section 269 does not indicate a special grant of discretion. Cf. United States v. Jefferson Elec. Manufacturing Co., 291 U.S. 386, 397-398 (1934) (the phrase “to the satisfaction of the Secretary” does not “invest the Commissioner with absolute authority or discretion” (emphasis added) but “means that the additional element is not lightly to be inferred but to be established by proof which convinces in the sense of inducing belief”); R.E. Dietz Corp. v. United States, 66 AFTR 2d 5772, 5779, 90-2 USTC par. 50,447, at 85,439 (N.D.N.Y. 1990) (the phrase “‘to the satisfaction of the Secretar/ 4 * * may very well indicate that the instant action should have been stylized and litigated as one * * * challenging that determination as arbitrary or capricious or as an abuse of discretion”), affd. 939 F.2d 1 (2d Cir. 1991).
Section 6015(b)(1) provides that “the other individual shall be relieved of liability”; section 6015(b)(2) provides that “such individual shall be relieved of liability”; and section 6015(c) provides that “the individual’s liability * * * shall not exceed” his or her allocable portion; but section 6015(0 departs from the pattern to provide that “the Secretary may relieve”. (Emphasis added.) As is discussed infra part IV.D, we recognize the difference of these forms of relief in our Opinion in Lantz v. Commissioner, supra at 144.
To the existing provision of section 6015(e)(1) granting jurisdiction to the Tax Court “[i]n the case of an individual * * * who elects to have subsection (b) or (c) apply”, the 2006 amendment (discussed in greater detail below) added “or in the case of an individual who requests equitable relief under subsection (f)”. (Emphasis added.) In addition, where existing language in subsection (e)(l)(A)(i)(II) and (B)(i) referred to “electting]” relief under subsections (b) and (c), equivalent amendments were made to add reference to “requestting]” relief under subsection (f). The majority ignores the difference between “electing” and “requesting” when they state, “Nothing in amended section 6015(e) suggests that Congress intended us to review for abuse of discretion.” Majority op. p. 208.
To “request” is “to ask * * * to do something” or “to ask * * * for something”, whereas to “elect” is “to make a selection of” or “to choose”. Webster’s Third New International Dictionary (1986). This Court has similarly “defined the legal term ‘election’” as the “choice of one of two rights or things”. Boardwalk Natl. Bank v. Commissioner, 34 T.C. 937, 945 (1960) (quoting Weis v. Commissioner, 30 B.T.A. 478, 488 (1934) (“The term ‘election’ in its legal sense means the choice of one of two rights or things, to each of which the party choosing has an equal right, but both of which he can not have, * * * as when a man is left to his own free will to take or do one thing or another, which he pleases, * * * a choice between different things, * * ” the act of electing or choosing”’)); see also Snow v. Alley, 30 N.E. 691, 692 (Mass. 1892) (“Election exists when a party has two alternative and inconsistent rights, and it is determined by a manifestation of a choice”); Black’s Law Dictionary 557 (8th ed. 2004) (describing an “election” as “The exercise of choice; esp., the act of choosing from several possible rights or remedies”).
See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3201(a), (b), 112 Stat. 734, 739. We observe in Lantz v. Commissioner, supra at 141 — 144, that section 6015(f) and the final sentence of section 66(c) are “companion statute[s]”.
See majority op. p. 209 (under section 6015(f), “the decision whether to grant relief * * * was committed largely to agency discretion”); majority op. p. 207 (the word “may” in section 6015(f) “suggest[s that] a grant of relief is discretionary”). If those statements by the majority are equivocal (qualified as they are by “largely” and “suggestts]”), then this Court has removed all doubt by lately holding that “a commonsense reading of section 6015 is that the Secretary has discretion to grant relief under section 6015(f)”. Lantz v. Commissioner, supra at 147.
See Estate of Roski v. Commissioner, 128 T.C. 113, 128 (2007) (noting the Commissioner’s concession that “‘a discretionary act * * * could only be subject to an abuse of discretion review’ ”).
Cf. Wiener v. Commissioner, T.C. Memo. 2008-230 (“Because we cannot ascertain what analysis was made by the Appeals officer in reaching his or her determination that petitioner is not entitled to relief under section 6015(f), we cannot review the determination for abuse of discretion. Instead, we shall examine the trial record de novo to decide whether respondent properly concluded that petitioner is not entitled to relief” (fn. ref. omitted)).
See Porter v. Commissioner, 130 T.C. 115, 143 (2008) (Goeke, J., concurring) (“it was logical for the Court in Butler * * * to find that the standard of review was abuse of discretion because of the discretionary language in section 6015(f)”). As we argue below, nothing material has changed since Butler was decided in 2000; and if the abuse-of-discretion standard was “logical” and “appropriate” then, it remains so today.
Billings v. Commissioner, 127 T.C. 7, 18 (2006) (Billings I).
The Tax Court observed in Billings I, 127 T.C. at 17, that this analysis did not deprive the Tax Court of jurisdiction over all section 6015(f) cases, but only over those raised in so-called nondeficiency stand-alone petitions. It observed that “innocent spouse relief under all subsections of 6015” (i.e., including section 6015(f) relief) remained available in deficiency cases under section 6213(a) and in collection due process cases under section 6330(d)(1)(A), as well as in “stand-alone petitions when the Commissioner has asserted a deficiency against a petitioner.” Id. at 18.
The Tax Belief and Health Care Act of 2006, Pub. L. 109-432, div. C, sec. 408(a), 120 Stat. 3061. As is discussed supra page 228 & note 9, these 2006 amendments also added, to the existing references in section 6015(e)(l)(A)(i)(II) and (B)(i) to a taxpayer’s “elect[ing]” relief under subsections (b) and (c), new references to a taxpayer “request[ing]” subsection (f) relief. Id. sec. 408(b), 120 Stat. 3062.
In this regard, section 6404 is not, in fact, a particularly close analogue to section 6015(e) but is different in two significant respects: First, the 1996 amendment of section 6404 gave the Tax Court jurisdiction where before it had none; but the 2006 amendment of section 6015(e) clarified the Tax Court’s jurisdiction as to only one form of section 6015(f) relief, leaving unaffected the Court’s preexisting jurisdiction as to other forms. Second, the 1996 amendment of section 6404 created a new review regime; but the 2006 amendment of section 6015(e) presupposed the existence of a body of case law that had consistently recognized an abuse-of-discretion standard of review.
See supra notes 3-6.
“[T]he standard * * * of review to be employed by the District Court [under section 7428] in examining the determination of the Secretary [as to initial qualification for tax-exempt status] * * * is to be de novo. * * * Normally, the Court’s decision will be based on the facts as represented in the administrative record.” Inc. Trustees of the Gospel Worker Soc. v. United States, 510 F. Supp. 374, 377 n.6 (D.D.C. 1981), affd. without published opinion 672 F.2d 894 (D.C. Cir. 1981).
See Porter I, 130 T.C. at 122-123 (“Review for abuse of discretion does not * * * preclude us from conducting a de novo trial. Ewing v. Commissioner, 122 T.C. [32] at 40 [(2004)]” (citing, e.g., cases under secs. 446, 482, and 6404)). Remand is not possible in a refund case, see D’Avanzo v. United States, 54 Fed. Cl. 183, 187 (2002), or in a deficiency case; and when these abuse-of-discretion issues arise (as they do) in refund and deficiency cases, remand is not an option.