Reese B. Belshee, Jr. and Betty J. Belshee - Page 9




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          Office notice of decision to the taxpayer or a notice of                    
          deficiency as required under section 7430(c)(2).  In so holding,            
          we rejected the taxpayer’s argument that it was unfair to apply             
          the flush language of section 7430(c)(2) literally where the                
          Commissioner admittedly erred in failing to issue a notice of               
          deficiency to the taxpayer before the disputed assessments.                 
          Further, after reviewing the legislative history underlying the             
          TAMRA amendments, we concluded that Congress intended that the              
          flush language of section 7430(c)(2) protect the Commissioner               
          from claims by taxpayers that positions taken by the Examination            
          and Collection Divisions of the Internal Revenue Service, before            
          administrative review, were not substantially justified.4                   
               Consistent with the plain language of section 7430(c)(2), as           
          well as the precept that a waiver of sovereign immunity is to be            
          strictly construed in favor of the sovereign, see Department of             
          the Army v. Blue Fox, Inc., 525 U.S. at ___, 119 S. Ct. at 691,             
          we hold that petitioners have failed to state a claim for                   
          relief.5  In sum, because respondent has not issued either an               
          Appeals Office notice of decision or a notice of deficiency to              


               4  The facts in Ball v. Commissioner, T.C. Memo. 1995-520,             
          are substantially similar to those presented in this case, and we           
          are satisfied that the Court’s analysis in Ball is correct.                 
               5  Because our holding is based on the plain language of               
          sec. 7430, specifically the flush language of sec. 7430(c)(2), we           
          need not consider petitioners’ contention that sec. 301.7430-               
          3(a)(4), Proced. & Admin. Regs., is invalid.                                





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