David Bruce Billings - Page 37

                                       - 37 -                                         
               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             





Page:  Previous  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  Next

Last modified: May 25, 2011