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deficiency has been asserted” is not clear, plain, or
unambiguous. Despite its assertions to the contrary, see Court
op. pp. 17, 18, 19, the Court Opinion acknowledges as much, see
Court op. p. 14 note 7. The Court’s consideration in Ewing I of
the legislative history of the amendment of section 6015(e)(1)
was proper.
In pointing out the Eighth Circuit’s interchangeable use in
Bartman of terms such as “assertion of a deficiency”,
“determination of a deficiency”, “issue of a notice of
deficiency”, and “assessment of a deficiency” (discussed below),
the Court Opinion states:
Future cases may well show that Congress meant to give
us jurisdiction when a deficiency was “asserted”
because it wanted to allow taxpayers to petition for
relief well before the IRS sends out a notice of
deficiency or makes an assessment--perhaps as soon as
issuance of a revenue agent’s report, or some other
time during an examination, when the IRS first “states
that additional taxes may be owed.” H. Conf. Rept.
106-1033, at 1023 (2000) (quoted in Ewing I, 118 T.C.
at 504).
The terms “determination” and “assessment” are not
customarily regarded as synonyms in tax law. A
“determination” is the IRS’s final decision, see, e.g.,
secs. 6212(a), 6230(a)(3)(B)). And an “assessment” is
the specific procedure by which the IRS officially
records a liability, see sec. 6203, triggering its
power to collect taxes administratively. (The Code
generally bars the IRS from assessing taxes that are
being contested in our Court. See sec. 6213(a).)
We note too that, although notices of deficiency
establish jurisdiction in most of our cases, see
Bartman, 446 F.3d at 787, Congress has given us
jurisdiction over cases in which there need be no
deficiency--for example, review of the Commissioner’s
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