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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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