- 45 -
may have been misled by the position that the Government advanced
on appeal in Bartman (and in Sjodin).20 In the briefs that the
Government filed in Bartman (and in Sjodin),21 the Government
argued that the language “a deficiency has been asserted” that
appears in the phrase “against whom a deficiency has been
asserted” means “a deficiency has been determined” by the
Commissioner. As explained above, the Commissioner “determines
that there is a deficiency” in a document called a “notice of
deficiency” that the Commissioner sends to the taxpayer. The
legislative history of the amendment of section 6015(e)(1) belies
the position of the Government on appeal in Bartman (and in
Sjodin).22 See supra note 18.
19(...continued)
asserted against the taxpayer. � 6015(e)(1).
Bartman v. Commissioner, 446 F.3d at 787.
I also read the Eighth Circuit’s opinion in Sjodin, which
relied on Bartman, as construing the language “a deficiency has
been asserted” to mean “a deficiency has been determined” by the
Commissioner in a notice of deficiency issued to the taxpayer.
Thus, the Eighth Circuit stated in Sjodin: “This circuit has
recently concluded [in Bartman] that the issuance of a deficiency
by the IRS is a prerequisite for tax court jurisdiction over a
petition for review from an IRS determination regarding relief
available under � 6015.” Sjodin v. Commissioner, __ Fed. Appx.
__, 97 AFTR 2d 2006-2622 (emphasis added).
20The Government took the same position on appeal of Ewing I
to the Ninth Circuit.
21See supra note 20.
22See supra note 20.
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