David Bruce Billings - Page 25

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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.           

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