David J. Edwards - Page 44




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                    We later emphasized in Clapp v. Commissioner,                     
               however, that the kind of review exercised in Scar is                  
               applicable “only where the notice of deficiency reveals                
               on its face that the Commissioner failed to make a                     
               determination.”  In Clapp, we determined that the                      
               notices of deficiency were adequate to establish                       
               jurisdiction where they indicated various adjustments                  
               to income and the fact that these adjustments were                     
               based upon the disallowance of deductions.  The                        
               taxpayers in Clapp attempted to show that the                          
               Commissioner had not made an actual determination of                   
               their deficiency by introducing internal IRS documents                 
               which suggested that at the time the notices were                      
               issued, the IRS had not decided which legal theory it                  
               would rely upon to secure a deficiency judgment.  We                   
               nevertheless refused to question the Commissioner's                    
               determination because there was no indication on the                   
               face of the notices that a determination had not been                  
               made.  The disallowed deductions did not refer to                      
               unrelated entities, nor had the tax rate been                          
               arbitrarily set.  [Emphasis added; citations omitted.]                 
          See also Johnston v. Commissioner, T.C. Memo. 2000-315 (“the                
          Court * * * has limited the application of Scar to the narrow               
          circumstances where the notice of deficiency reveals on its face            
          that no determination was made.”).  In Meserve Drilling Partners            
          v. Commissioner, 152 F.3d 1181 (9th Cir. 1998), affg. T.C. Memo.            
          1996-72, the Court of Appeals for the Ninth Circuit made clear              
          that all the Commissioner must do is examine the taxpayer’s                 
          returns and consider the taxpayer’s deductions.  Recently, in an            
          unpublished opinion, the Court of Appeals for the Ninth Circuit,            
          in a case argued by petitioner’s counsel, rejected petitioner’s             
          argument that Scar applies where, as in the case at hand, the               
          notice of deficiency shows how the deficiency was computed.                 
          Staggs v. Commissioner, 25 Fed. Appx. 566 (9th Cir. 2001).                  







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