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inadvertently, by putting a date on the notice of deficiency that
is after the last date for filing a timely petition. The
Congress accomplished this in section 3463(b) of the 1998 Act by
providing that a petition will be timely if it is filed by the
date that the Commissioner set forth on the notice of deficiency.
Consistent with the approach in section 3463(a) of the 1998 Act,
the taxpayer’s right to the subsection (b) relief is not affected
by whether the taxpayer was in fact misled by the Commissioner’s
incorrect advice.
Thus, the Congress specifically provided a consequence to
the Commissioner’s failure to comply correctly. But, the
majority in the instant case hold, there is not any consequence
to the Commissioner’s failure to comply at all. Not only is
there not any consequence provided for in section 3463 of the
1998 Act under the majority’s holdings, but there is not a
shotgun behind the door.4 The effect of the majority’s holding
is to make section 3463(a) of the 1998 Act into mere surplusage.
Section 3463(b) of the 1998 Act presumably would continue to
operate in those instances where the Commissioner chose to
specify in the notice of deficiency a cutoff date for filing a
3(...continued)
limitations period to point out an error recognizable well
before”).
4See Silver v. New York Stock Exchange, 373 U.S. 341, 352
(1963).
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