David Bruce Billings - Page 38

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          pendency of the section 6015 Court proceeding, and/or at some               
          other time, that “the Commissioner asserts that he [the taxpayer]           
          owes more in tax than reported on his [the taxpayer’s] return.”14           
          Court op. p. 17.                                                            

               14If the Court Opinion intends by its use of the present               
          tense “asserts” to impose a jurisdictional requirement that, at             
          the time a petition is filed and thereafter during the pendency             
          of the sec. 6015 Court proceeding, the Commissioner must be                 
          asserting that the taxpayer “owes more in tax than reported on              
          his [the taxpayer’s] return”, such a holding would result in the            
          Court’s not having jurisdiction over a case in which “a                     
          deficiency has been asserted” at some point in time in the                  
          administrative process and an ultimate determination has been               
          made while the case is pending in a sec. 6015 Court proceeding              
          that there is no “deficiency”.  I believe that any such result              
          would be wrong, even assuming arguendo that the Court Opinion               
          were correct that the phrase “against whom a deficiency has been            
          asserted” is a jurisdictional requirement.                                  
               Not only does the Court Opinion’s holding read out of sec.             
          6015(e)(1) the words “has been asserted” in the phrase “against             
          whom a deficiency has been asserted”, it reads into that phrase             
          the requirement that “the Commissioner” be asserting a                      
          “deficiency”.  Sec. 6015(e)(1) is silent, and thus ambiguous,               
          regarding who must have asserted the “deficiency”.  If the Court            
          Opinion were correct that the phrase “against whom a deficiency             
          had been asserted” is “clear”, “plain”, and “not ambiguous”,                
          Court op. pp. 17, 18, 19, it would be inappropriate to consult              
          the legislative history of the amendment of sec. 6015(e) in order           
          to determine who must have asserted the “deficiency”.  However,             
          it would be proper to consult the dictionary definition of the              
          word “assert”.  The definition of the word “assert” in Webster’s            
          Third New International Dictionary Unabridged 131 (1993) is                 
          “state or affirm positively”.  Thus, petitioner could have                  
          “asserted” for purposes of sec. 6015(e)(1) a “deficiency” when he           
          and his spouse filed their amended return and/or the Commissioner           
          could have “asserted” a “deficiency” when the Commissioner                  
          assessed the increase in the tax shown in that amended return,              
          which was attributable to the “deficiency” with respect to the              
          original return.  The point is that sec. 6015(e)(1) is not plain            
          or clear regarding who must have asserted a “deficiency”.  It is            
          thus necessary to consult the legislative history of the                    
          amendment of sec. 6015(e).                                                  




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