David Bruce Billings - Page 39

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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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