- 38 - 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).Page: Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Next
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