David Bruce Billings - Page 30

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          Golsen v. Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445              
          F.2d 985 (10th Cir. 1971).  Nonetheless, because the Court                  
          Opinion concludes that those opinions “change the judicial                  
          landscape”, Court op. p. 16, it proceeds to reconsider Ewing I              
          and decides to overrule it.8                                                
               I turn first to the Court Opinion to explain why I am not              
          persuaded by that Opinion that the Court should overrule Ewing I.           
          In deciding to overrule the Court’s holding in Ewing I, the Court           
          Opinion concludes that that holding                                         
               becomes problematic, particularly when we consider that                
               “deficiency” itself has a defined meaning--the amount                  
               by which the tax imposed by the Internal Revenue Code                  
               exceeds the amount reported on a return, including an                  
               amended return.  We now hold, consistently with those                  
               opinions [Ewing II and Bartman], that the phrase                       
               [“against whom a deficiency has been asserted”]                        
               establishes a condition precedent:  A petitioner in                    
               this Court who seeks judicial review of a denial of                    
               relief must show that the Commissioner asserts that he                 
               owes more in tax than reported on his return.  By                      
               amending section 6015 the way it did, Congress narrowed                
               the class of individuals able to invoke our                            
               jurisdiction under section 6015(e)(1)(A) to those                      
               “against whom a deficiency has been asserted.”  We                     
               cannot fairly read Congress’s phrasing of this                         

               8In overruling Ewing I and holding that the Court does not             
          have jurisdiction over the instant case, the Court Opinion                  
          acknowledges that “Billings’s position is not a weak one.”  Court           
          op. p. 7.  Nonetheless, having held that the Court does not have            
          jurisdiction over the instant case, the Court Opinion directs               
          that an order be entered dismissing this case for lack of                   
          jurisdiction.  Court op. p. 20.  In doing so, perhaps the Court             
          Opinion finds solace in its suggestion, which I consider to be an           
          inappropriate and questionable suggestion, that “it is quite                
          possible that the district courts will be the proper forum for              
          review of the Commissioner’s denials of relief in nondeficiency             
          stand-alone cases.”  Court op. p. 20.                                       

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