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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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