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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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