David Bruce Billings - Page 46

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               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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