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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.
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