Isn’t good enough for Judge Marvel, not even if the IRS says so. That’s good news for James Durant Melton, Docket No. 30236-13L, filed 5/1/15.

Why good news? Because IRS isn’t getting summary J so fast to collect from James D.

James D. claims he only has Social Security, and that doesn’t cover half his living expenses.

Appeals said James D. never gave them evidence of his actual living expenses, but waited until James D. petitioned the NOD they gave him before saying so.

Sounds like a Chenery revisitation? See my blogpost “Chen-Chenery”, 8/21/14.

And Judge Marvel thinks so, too.

“Although the notice of determination does not explain why respondent’s Appeals Office sustained the proposed levy, see SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Antioco v. Commissioner, T.C. Memo. 2013-35, at *24-*25; Jones v. Commissioner, T.C. Memo. 2012-274, at *22-*23, respondent contends, in part, that it did so because petitioner failed to provide documentary evidence to support his claimed monthly housing and utility expenses. Respondent acknowledges that the Appeals Office did not allow any allowance for housing and utility expenses and contends that petitioner’s allowable monthly expenses total only $1,096. However, we are not limited to the administrative record in reviewing the Appeals Office’s determinations, see Robinette v. Commissioner, 123 T.C. 85, 101 (2004), rev’d, 439 F.3d 455 (8th Cir. 2006), and we are unwilling to accept without a trial respondent’s assertion that petitioner is not entitled to any monthly housing and utility expense allowance. In short, respondent has failed to convince us that there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law.” Order, at p. 2.

OK, Chenery binds the administrative agency to the record it made and not the one it wishes it made, but doesn’t limit the Courts to that record.

But why not a remand to fill out the record? Wouldn’t that make more sense than leaving the case for trial? I doubt James D. will make such a motion, and I’m not betting on IRS’s counsel either, so maybe Judge Marvel might consider it.