James A. Rochelle - Page 23





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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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