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CHABOT, J. dissenting: The Congress decided that, if the
Commissioner sent a notice of deficiency to a taxpayer, then the
taxpayer should have help in determining the last date for
petitioning this Court. The Congress decided to charge the
Commissioner with the task of providing this help. The Congress
decided to effectuate the foregoing by enacting that the
Commissioner “shall include on each notice of deficiency”
(emphasis added) the last date for petitioning this Court. Sec.
3463(a) of the 1998 Act.
The majority’s opinion may be read to permit, or perhaps
even encourage, the Commissioner to ignore the obligation of the
statute, with no consequences except (1) where the taxpayer was
misled and detrimentally relied on the misleading interpretation,
or (2) perhaps where the taxpayer filed the “petition just after
the expiration of the [statutory] filing period”.
From the foregoing, I dissent.
I. “Shall”
When used in a statute, the word “shall” is ordinarily a
word of command. See Escoe v. Zerbst, 295 U.S. 490, 493 (1935)
(citing Richbourg Motor Co. v. United States, 281 U.S. 528, 534
(1930)); United States v. Wood, 295 F.2d 772, 783 (5th Cir.
1961); Estate of La Sala v. Commissioner, 71 T.C. 752, 762-763
(1979).
Neither the context of the statutory provision nor its
legislative history indicates that, in section 3463(a) of the
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