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I agree with the Court Opinion that in the instant case
there would be no “deficiency” extant after petitioner and his
spouse filed their joint amended return if the meaning of that
term in section 301.6211-1(a), Proced. & Admin. Regs., were
applicable for purposes of section 6015.11 However, the Court
Opinion does not consider, let alone answer, whether and why that
meaning, and not the meaning established in cases such as
Badaracco v. Commissioner, supra, should apply for purposes of
section 6015, including section 6015(e)(1).12 The term
“deficiency” that appears in section 6015(e)(1) in the phrase
11That there would be no “deficiency” extant after
petitioner and his spouse filed their joint amended return if the
definition of that term in sec. 301.6211-1(a), Proced. & Admin.
Regs., were applicable for purposes of sec. 6015 does not answer
the question whether “a deficiency has been asserted” for
purposes of sec. 6015(e)(1). See discussion below. Nor does it
answer the question whether there is (1) a “deficiency”, or an
“understatement of tax”, for purposes of sec. 6015(b) or (2) a
“deficiency” for purposes of sec. 6015(c). Sec. 6015(b)(1)(B)
requires that there be an “understatement of tax” in the return
in order to obtain relief under sec. 6015(b). Sec. 6015(b)(1)(D)
refers to whether it is inequitable to hold the taxpayer liable
“for the deficiency in tax for such taxable year attributable to
such understatement”. Sec. 6015(b)(3) provides that the term
“understatement” is defined by sec. 6662(d)(2)(A). Sec.
6662(d)(2)(A) generally defines that term as the excess of “the
amount of the tax required to be shown on the return” over “the
amount of the tax * * * shown on the return”. Nothing in sec.
6015(b) requires that “a deficiency has been asserted”.
12The Court Opinion’s ipse dixit that, for all purposes of
the Code, the only meaning of the term “deficiency” is that set
forth in sec. 301.6211-1(a), Proced. & Admin. Regs., not only
ignores caselaw holding to the contrary, it also disregards that
nothing in sec. 6015 requires a “deficiency” (or “understatement
of tax”) to continue to exist at any time after a taxpayer files
an original return.
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