- 45 -
statute if such adherence produces an outcome that is
“demonstrably at odds” with clearly expressed congressional
intent to the contrary, Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 571 (1982), Peaden v. Commissioner, 113 T.C. 116,
122 (1999), or results in an outcome so absurd “as to shock the
general moral or common sense”, Tele-Communications, Inc. v.
Commissioner, 95 T.C. 495, 507 (1990). The majority does not set
forth a convincing case that either of these exceptions to the
plain language doctrine are applicable. Instead, the majority
disregards petitioner’s valid return “to avoid a conflict and
interpret sections 6213, 6654 and 6665 in a way that makes
sense.” Majority op. pp. 33-34. The purported conflict (i.e.,
regarding respondent’s ability to assess the penalty while we
have jurisdiction) has already been addressed and resolved by
Powerstein v. Commissioner, 99 T.C. 466, 472-473 (1992). In
Powerstein, the taxpayers filed amended returns subsequent to
filing their petition, and we held that after we obtain
jurisdiction respondent may be enjoined, pursuant to section
6213(a), from making an assessment. See Naftel v. Commissioner,
85 T.C. 527, 529-530 (1985) (stating that after we obtain
jurisdiction we do not lose it).
The majority provides that Schwarzkopf v. Commissioner, 246
F.2d 731 (3d Cir. 1957), and Rev. Rul. 2003-23, 2003-8 I.R.B.
511, do not “address circumstances in which the taxpayer’s
Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 NextLast modified: May 25, 2011