- 39 - The only thing about the phrase “against whom a deficiency has been asserted” that is beyond question is that it does not require, as the Court Opinion does, more than that “a deficiency has been asserted” at some point in time.15 The Court Opinion is wrong to read the words “has been asserted” out of the phrase “against whom a deficiency has been asserted” and to read the word “asserts” into that phrase. Although the Court Opinion declines to consider the legislative history of the amendment of section 6015(e)(1) in order to interpret the phrase “against whom a deficiency has been asserted”, it nonetheless offers the following criticism of the Court’s reliance on that legislative history in Ewing I: The amendment’s history shows no indication that Congress was thinking about nondeficiency relief under subsection (f) at all. And, whatever the merits of using legislative history to overcome the plain language of a statute, the merits of using the absence of legislative history to overcome the plain language of the statute must necessarily be weaker. Reasoning that a partial repeal of our jurisdiction would have to be in the legislative history to be effective is, we 15The Court Opinion seems to recognize as much when it states: Future cases may well show that Congress meant to give us jurisdiction when a deficiency was “asserted” because it wanted to allow taxpayers to petition for relief well before the IRS sends out a notice of deficiency or makes an assessment--perhaps as soon as issuance of a revenue agent’s report, or some other time during an examination, when the IRS first “states that additional taxes may be owed.” * * * Court op. p. 15 note 7.Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Next
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