- 46 -
In apparently adopting the position advanced to it by the
Government, the Eighth Circuit has not interpreted the phrase
“against whom a deficiency has been asserted” that it held was
“clear and unambiguous” and “plain,” Bartman V. Commissioner, 446
F.3d 785, 787, 788 (8th Cir. 2006), affg. in part and vacating in
part T.C. Memo. 2004-93, according to the language in that
phrase. Instead, it has construed that phrase and gave it a
meaning that is contrary to, and not apparent from, the language
in that phrase.23
I turn finally to the Ninth Circuit’s opinion in Ewing II to
explain why I am not persuaded by that opinion that the Court
should overrule Ewing I. According to the Ninth Circuit, the
language of the amendment of section 6015(e)(1) is “plain”,
Commissioner v. Ewing, 439 F.3d at 1013; “by interpreting the
23The only reasonable alternative to my reading of the
Eighth Circuit’s opinion in Bartman is that, because of the
Eighth Circuit’s interchangeable use of various terms that are
not synonymous in the Federal tax law, that Court’s holding as to
the meaning of the phrase “against whom a deficiency has been
asserted” is ambiguous. In this connection, I note that the
Court Opinion states: “We construe Bartman’s holding to be the
sentence ‘We agree with the Ninth Circuit that the tax court
lacks jurisdiction under � 6015(e) unless a deficiency was
asserted against the individual petitioning for review’”. Court
op. pp. 14-15 note 7 (emphasis added). That statement of the
Court Opinion ignores what the Eighth Circuit stated its holding
to be in Bartman. The Eighth Circuit stated: “Applying the
statute’s plain language, we hold that the tax court had no
jurisdiction to review Bartman’s petition for review of the IRS’s
denial of her tax year 1997 refund request because no deficiency
had been assessed against Bartman for tax year 1997.” Bartman v.
Commissioner, supra at 788 (emphasis added).
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