David Bruce Billings - Page 41

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          prior to the amendment of section 6015(e)(1) over a stand-alone             
          section 6015(f) “nondeficiency case”, it would have expressly and           
          clearly so stated in the legislative history of that amendment.             
          It did not.  The silence of Congress is strident.16                         
               I turn now to the Eighth Circuit’s opinion in Bartman to               
          explain why I am not persuaded by that opinion that the Court               
          should overrule Ewing I.  As discussed above, the Court Opinion             
          points out, Court op. p. 14 note 7, that the Eighth Circuit in              
          Bartman interchangeably used terms such as “determination of a              
          deficiency”, “issue of a notice of deficiency”, and “assessed               
          deficiency”, even though those terms are not synonymous in the              
          Federal tax law.  The Eighth Circuit in Bartman also                        
          interchangeably used those terms with the phrase “a deficiency              
          has been asserted” in section 6015(e)(1), evidently having                  
          concluded that all of those terms are synonymous in the Federal             
          tax law.17  As the legislative history of section 6015(e)(1)                

               16Senators Feinstein and Kyl recently introduced S. 3523,              
          109th Cong., 2d Sess., sec. 1 (2006), that would clarify that the           
          Court has jurisdiction under sec. 6015(e) to review all claims              
          for relief under sec. 6015(f).  In introducing that bill, Senator           
          Feinstein stated:  “this bill clarifies the statute’s original              
          intent”.  152 Cong. Rec. S5962 (daily ed. June 15, 2006).                   
               17To illustrate, the Eighth Circuit stated in Bartman:                 
                    The IRS did not determine a deficiency against                    
               Bartman for tax year 1997.  Bartman cites Ewing v.                     
               Comm'r, 118 T.C. 494, 2002 WL 1150775 (2002), where the                
               tax court found that it had jurisdiction to review a                   
               petition from a denial of a request for � 6015 relief,                 

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