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CHIECHI, J., dissenting: With all due respect, I am not
persuaded by the United States Court of Appeals for the Ninth
Circuit (Ninth Circuit)1 or the United States Court of Appeals
for the Eighth Circuit (Eighth Circuit)2 that the Court erred in
holding in Ewing I that the Court had jurisdiction over the
taxpayer’s claim in that case for relief under section 6015(f).
Nor does the Court Opinion3 convince me that the Court should
overrule that holding in Ewing I.
Neither the Ninth Circuit nor the Eighth Circuit expresses
disagreement with, and the Court Opinion reaffirms, see Court op.
pp. 9, 12, 13, 17, 19, the Court’s conclusion in Ewing I that,
prior to the amendment in question of section 6015(e)(1),4 the
1See Commissioner v. Ewing, 439 F.3d 1009 (9th Cir. 2006)
(Ewing II), revg. 118 T.C. 494 (2002) (Ewing I). In light of the
Ninth Circuit’s holding in Ewing II, the Ninth Circuit vacated
Ewing v. Commissioner, 122 T.C. 32 (2004), which addressed issues
unrelated to the jurisdictional issue that the Court considered
in Ewing I.
2See Bartman v. Commissioner, 446 F.3d 785 (8th Cir. 2006)
(Bartman), affg. in part and vacating in part T.C. Memo. 2004-93;
see also Sjodin v. Commissioner, Fed. Appx. , 97 AFTR 2d
2006-2622 (8th Cir. 2006) (Sjodin), vacating and remanding per
curiam T.C. Memo. 2004-205.
3I refer to the “Court Opinion”, and not to the “majority
opinion”, because a majority of the Court’s Judges did not join
the Opinion of the Court.
4The phrase “against whom a deficiency has been asserted”
was added to sec. 6015(e)(1), effective on Dec. 21, 2000, by the
Consolidated Appropriations Act, 2001 (2001 Consolidated
Appropriations Act), Pub. L. 106-554, app. G, sec. 313, 114 Stat.
2763A-641 (2000). Essentially the same phrase was added to sec.
6015(c)(3)(B), effective on the same date, by the 2001
Consolidated Appropriations Act. Id. After that amendment, sec.
(continued...)
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