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We similarly continue to adhere to our reading in Ewing I of
the amendment’s legislative history as focused on the proper time
for a taxpayer to request innocent spouse relief from the IRS.
See Ewing I, 118 T.C. at 504. But, though “the amendment was
certainly all about timing [it] was also all about deficiencies.
So it simply reinforces the idea that the elections in
subsections (b) and (c) are also all about deficiencies.”8 The
amendment’s history shows no indication that Congress was
thinking about nondeficiency relief under subsection (f) at all.
And, whatever the merits of using legislative history to overcome
the plain language of a statute, the merits of using the absence
of legislative history to overcome the plain language of the
statute must necessarily be weaker.9 Reasoning that a partial
repeal of our jurisdiction would have to be in the legislative
8 Camp, “Between a Rock and a Hard Place,” 108 Tax Notes
359, 368 (2005).
9 The taxpayer in Bartman noted in oral argument that there
is a presumption against implied repeals of federal jurisdiction,
citing, for example, United States v. Lahey Clinic Hosp., Inc.,
399 F.3d 1, 9 (1st Cir. 2005). See
http://www.ca8.uscourts.gov/oralargs/oaFrame.html (case no. 04-
2771). But that presumption is an application of the more
general presumption disfavoring implied repeal of one statute by
another--a presumption irrelevant here because it would amount to
using old section 6015(e) to rewrite the amendment, and one
should not use a “statute that no longer is on the books to
defeat the plain language of an effective statute.” Am. Bank &
Trust Co. v. Dallas County, 463 U.S. 855, 872-873 (1983); see
also 1A Sutherland Statutes and Statutory Construction, sec.
23:12 (6th ed.)(irreconcilable prior provision must yield to
amendment).
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