Cir

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREN MARIE WILSON , No. 10-72754 Petitioner-Appellee, Tax Ct. No. v. 23882-

COMMISSIONER OF INTERNAL

REVENUE , OPINION

Respondent-Appellant.

Appeal from a Decision of the United States Tax Court

Argued and Submitted November 15, 2011—San Francisco, California

Filed January 15, 2013

Before: Sidney R. Thomas, Ronald M. Gould, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Thomas; Dissent by Judge Bybee WILSON V . CIR

SUMMARY*

Tax

Affirming the Tax Court’s grant of innocent spouse relief under 26 U.S.C. § 6015, the panel held that the Tax Court properly reviewed new evidence outside the administrative record and correctly applied a de novo standard of review in determining the taxpayer’s eligibility for equitable relief based on the text, structure, and legislative history of the statute.

Judge Bybee dissented. He would hold that, because the Tax Court is a “reviewing court” for purposes of the judicial review provisions of the Administrative Procedure Act, the Tax Court can only review the…

Opinion by Judge THOMAS; Dissent by Judge BYBEE.

OPINION

In this case, we consider how the Tax Court should review appeals for equitable innocent spouse relief from joint and several liability for unpaid taxes under 26 *982 U.S.C. § 6015 (f). We join the Eleventh Circuit and hold that the Tax Court properly considered new evidence outside the administrative record. We also conclude that the Tax Court correctly applied a de novo standard of review in determining the taxpayer’s eligibility for equitable relief. We affirm the judgment of the Tax Court.

I

Thousands of citizens each year discover to their surprise that they are liable for their former spouse’s tax debt. 1 Most of them are recently divorced, separated, or widowed women. 2 Many are victims of domestic abuse, whose ability to review or correct a joint return before it is filed is impaired. 3 A substantial number are low-income, single parents.

Congress has not turned a blind eye to this situation, and the legislative history of its response is important to our understanding of the Tax Court’s role.

Before 1918, each spouse was required to file a separate return. In 1918, Congress first permitted married couples to…

dissenting:

The question presented in this case is one fundamental to administrative law: What is the scope of review—and, concomitantly, the standard of review—of the Tax Court’s review of the Secretary of the *995 Treasury’s decision to deny equitable relief to an innocent spouse? Under 26 U.S.C. § 6015 (f), if, “taking into account all the facts and circumstances, it is inequitable to hold [an innocent spouse] liable for any unpaid tax or any deficiencyf,] ... the Secretary may relieve such individual of such liability.” The Tax Court held, and the majority affirms,' that the Tax Court may review the Secretary’s decision by “a de novo standard of review as well as a de novo scope of review.” Porter v. Comm’r (Porter II), 132 T.C. 203, 210 (2009) (en banc); see Maj. Op. at 987 (“[T]he Tax Court properly considered new evidence outside the administrative record____ [and] applied a de novo standard of review. ...”). The Tax Court so concludes, not because the Secretary has failed to consider the administrative record or abused his discretion, but because the Administrative Procedure Act does not apply to the Tax Court’s review of the Secretary’s actions. See Porter v. Comm’r…