David Bruce Billings - Page 36

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               determinations after IRS collection due process                        
               hearings.  Sec. 6330(d)(1).  However, because there was                
               no deficiency lurking in this case at all,[13] we need                 
               not decide whether an “assertion of deficiency” is                     
               synonymous with a “notice of deficiency,” much less an                 
               “assessment”, in defining the limits of our                            
               jurisdiction under section 6015(e). * * *                              
          Court op. p. 15 note 7; see also Court op. p. 14.                           
               Despite assertions to the contrary that appear in the Court            
          Opinion, see Court op. pp. 17, 18, 19, the excerpt quoted above             
          leaves no doubt that the Court Opinion concludes that the phrase            
          “against whom a deficiency has been asserted” may have any one of           
          several possible meanings.  The Court Opinion thus acknowledges             
          that that phrase is ambiguous.  The internal inconsistency in the           
          Court Opinion as to whether the phrase “against whom a deficiency           
          has been asserted” is ambiguous is another material flaw in that            
          Opinion.  Having concluded that that phrase is ambiguous, the               
          Court Opinion should have considered the legislative history of             
          the amendment of section 6015(e)(1), as the Court properly did in           
          Ewing I, in order to determine its meaning as used in section               
          6015(e)(1).                                                                 


               13I disagree that “there was no deficiency lurking in this             
          case at all”.  There was a “deficiency” with respect to the                 
          original return filed by petitioner and his spouse.  Nothing in             
          the Court Opinion adequately explains why that “deficiency” with            
          respect to the original return is not the “deficiency” in the               
          phrase “against whom a deficiency has been asserted” in sec.                
          6015(e)(1).  Nor does anything in the Court Opinion adequately              
          explain why it apparently assumes that a “deficiency” must                  
          continue to exist at the time a claim for relief under sec.                 
          6015(b) is made.  See discussion above and below.                           




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