David Bruce Billings - Page 44

                                       - 44 -                                         
               Although the Eighth Circuit in Bartman interchangeably used            
          terms that are not synonymous in the Federal tax law, after a               
          careful reading of the Eighth Circuit’s opinion in Bartman (and             
          its opinion in Sjodin that relied on Bartman), I believe that the           
          Eighth Circuit in Bartman (and in Sjodin) construed the language            
          “a deficiency has been asserted” that appears in the phrase                 
          “against whom a deficiency has been asserted” to mean “a                    
          deficiency has been determined” by the Commissioner in a notice             
          of deficiency.19  In reaching that conclusion, the Eighth Circuit           

               19Before the Eighth Circuit in Bartman began to use                    
          interchangeably various terms that have different meanings in the           
          Federal tax law, see supra note 17, the Eighth Circuit stated:              
                    Congress created the United States Tax Court “to                  
               provide taxpayers with a means of challenging                          
               assessments made by the Commissioner without first                     
               having to pay the alleged deficiency.  Without such a                  
               forum, taxpayers would have to pay the asserted                        
               deficiency and then initiate a suit in federal district                
               court for a refund.”  Samuels, Kramer & Co. v. Comm'r,                 
               930 F.2d 975, 979 (2d Cir. 1991).  As an Article I                     
               court, the tax court is a court of “strictly limited                   
               jurisdiction.”  Kelley v. Comm'r, 45 F.3d 348, 351 (9th                
               Cir. 1995).  A notice of deficiency issued by the IRS                  
               pursuant to � 6212 is the taxpayer's jurisdictional                    
               “ticket to the Tax Court.”  Bokum v. Comm'r, 992 F.2d                  
               1136, 1139 (11th Cir. 1993) (quoting Stoecklin v.                      
               Comm'r, 865 F.2d 1221, 1224 (11th Cir. 1989)); Spector                 
               v. Comm'r, 790 F.2d 51, 52 (8th Cir. 1986) (per curiam)                
               (citing Laing v. United States, 423 U.S. 161, 165, 96                  
               S.Ct. 473, 46 L.Ed.2d 416 n. 4 (1976), and holding that                
               “the determination of a deficiency and the issue of a                  
               notice of deficiency is an absolute precondition to tax                
               court jurisdiction”).  Accordingly, the IRC provides                   
               that the tax court has jurisdiction over petitions for                 
               review from determinations regarding the availability                  
               of � 6015 relief only where a deficiency has been                      

Page:  Previous  34  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  Next

Last modified: May 25, 2011