David Bruce Billings - Page 45

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          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.                                              

               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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