David Bruce Billings - Page 35

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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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