Rule in CDPs

Richard Hudec, Docket No. 1953-20L, filed 10/21/21*, is the usual you-didn’t raise it-at-Appeals-so-fuggedaboutit. Richard had an EA as agent (not Power of Attorney, Judge Christian N. (“Speedy”) Weiler; a power of attorney is a piece of paper or a concatenation of electrons wherewith the taxpayer-principal appoints a Representative or Agent). The EA may not have been in the picture at Appeals; I can’t discern the whole story from the order.

I only blog this order because Judge Speedy Weiler provides a footnote with the latest learning on which CCAs are record-rule-only, and which are free of the Administrative Procedures Act and the record rule in CDP abuse of discretion cases.

I include Judge Speedy Weiler’s “copious citation of precedent” to make my readers’ lives easier if they need to drag-and-drop for a brief or memo of law.

” The facts in this Order are principally derived from the administrative record developed before Appeals; however, our review of Appeals’ determination is not limited to the administrative record. In Robinette v. Commissioner, 123 T.C. 85, 95 (2004), rev’d, 439 F.3d 455 (8th Cir. 2006), we held that ‘when reviewing for abuse of discretion under section 6330(d), we are not limited by the Administrative Procedure Act * * * and our review is not limited to the administrative record.’ The Courts of Appeals for the First, Eighth and Ninth Circuits have concluded otherwise, holding that the so-called ‘record rule’ applies to Collection Due Process (CDP) cases before this Court. See Keller v. Commissioner, 568 F.3d 710, 718 (9th Cir. 2009), aff’g in part T.C. Memo. 2006-166, and aff’g in part, rev’g in part decisions in related cases; Murphy v. Commissioner, 469 F.3d 27 (1st Cir. 2006); Robinette v. Commissioner, 439 F.3d 455 (8th Cir. 2006), rev’g 123 T.C. 85 (2004). Under sec. 7482(b)(1)(G), appeal in this case would lie in the Court of Appeals for the Eleventh Circuit, absent a stipulation by the parties to the contrary. Since the Eleventh Circuit has not addressed the issue, our review of Appeals’ determination in this case is not limited by the record rule. See Golsen v. Commissioner, 54 T.C. 742, 756-757 (1970), aff’d, 445 F.2d 985 (10th Cir. 1971).” Order, Footnote 1, at pp. 1-2.

And this gives me a springboard once again to suggest that essential elements of due process should not be constrained by State lines; Federal tax law is uniform for the entire country, so the scope of review should follow the flag, not cartography.

*Richard Hudec 1953-20L 10 21 21