- 44 - 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 Recently, in an unpublished opinion, the Court of Appeals for the Ninth Circuit, in a case argued by petitioner’s counsel, rejected petitioner’s argument that Scar applies where, as in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).Page: Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Next
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