- 65 -
discretion under section 6081 (see Estate of Gardner v.
Commissioner, 82 T.C. 989, 999 (1984)), and application of the
First Amendment to the Constitution; see Kessler v. Commissioner,
87 T.C. 1285 (1986), affd. without published opinion 838 F.2d
1215 (6th Cir. 1988) (compare 87 T.C. at 1287-1292 with 87 T.C.
at 1293).
Respondent’s reliance on Estate of Sherrod v. Commissioner,
supra, and Estate of Meyer v. Commissioner, supra, is misplaced.
In those cases we held that, under the law then in effect, we did
not have jurisdiction over disputes about the validity of a
section 6166 election. Our broadly stated conclusions in those
two opinions were based on the matters in dispute in those two
cases and the statutes in effect for those two cases. However,
the statutes have changed, and, as a result, the settings of the
disputes have changed. Of controlling significance in the
instant case27 is the 1986 legislation giving us jurisdiction
over disputes as to the section 6651(a)(2) addition to tax, see
supra note 22, respondent’s notice of deficiency determination of
27 The enactment of sec. 7479 (relating to declaratory judgment
jurisdiction over certain sec. 6166 election matters) by sec.
505(a) of the Taxpayer Relief Act of 1997 (TRA 1997), Pub. L.
105-34, 111 Stat. 788, 854, also modifies the continued
effectiveness of our broadly stated conclusions in Estate of
Sherrod v. Commissioner, 82 T.C. 523 (1984), revd. on another
issue 774 F.2d 1057 (11th Cir. 1985), and Estate of Meyer v.
Commissioner, 84 T.C. 560 (1985). See Estate of Heffley v.
Commissioner, 89 T.C. 265, 277 n.4 (1987), affd. 884 F.2d 279
(7th Cir. 1989). However, sec. 7479 applies only to estates of
decedents dying after the date of enactment, Dec. 2, 1997. See
TRA 1997, sec. 505(c), 111 Stat. at 855. In the instant case,
decedent died on May 4, 1992. Thus, sec. 7479 does not affect
the instant case.
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