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Although the Court Opinion concludes that the phrase
“against whom a deficiency has been asserted” is ambiguous, see
Court op. p. 14 note 7, it also concludes, inconsistently, that
that phrase is “clear”, “plain”, and “not ambiguous”, Court op.
pp. 17, 18, 19. Having concluded, albeit inconsistently, that
the phrase “against whom a deficiency has been asserted” is not
ambiguous, the Court Opinion should have interpreted that phrase
according to its language. It did not. The Court Opinion holds
that the phrase “against whom a deficiency has been asserted”
requires that “A petitioner in this Court who seeks judicial
review of a denial of relief must show that the Commissioner
asserts that he owes more in tax than reported on his return.”
Court op. p. 17 (emphasis added). The Court Opinion’s holding
uses the present tense “asserts”. In contradistinction, section
6015(e)(1) uses “has been asserted”. By using the present tense,
which is not found in section 6015(e)(1) in the phrase “against
whom a deficiency has been asserted”, the Court Opinion reads
into that phrase a requirement that is not in that section.
Having read such a requirement into section 6015(e)(1), the Court
Opinion makes matters worse by failing to specify when the
taxpayer must satisfy that requirement. Thus, the Court Opinion
is unclear as to whether it requires a taxpayer who files a
petition with the Court seeking section 6015 relief to show, at
the time the taxpayer files the petition, thereafter during the
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