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statute as not requiring the assertion of a deficiency, the Tax
Court simply has written the language out of the statute”, id. at
1014; and by doing so, the Tax Court violated “the basic
principle of statutory construction that ‘a statute ought, upon
the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or
insignificant’”, id.
With respect to the Ninth Circuit’s conclusion in Ewing II
that the language “against whom a deficiency has been asserted”
is “plain”, the Court Opinion in the instant case and the Eighth
Circuit’s opinions in Bartman and Sjodin belie that conclusion.
With respect to the Ninth Circuit’s conclusions in Ewing II
that in Ewing I the Court wrote the language “against whom a
deficiency has been asserted” out of section 6015(e)(1), thereby
making that phrase “superfluous, void, or insignificant”, id.,
and violating a basic principle of statutory construction, id.,
that is not what the Court did in Ewing I. The Court found in
Ewing I that Congress added the phrase “against whom a deficiency
has been asserted” to section 6015(e)(1) in order to prevent a
taxpayer from making a claim for relief under section 6015 until
a “deficiency has been asserted” only in a situation where tax
may or may not have been underreported in a return, namely, only
in a “deficiency” situation. Ewing v. Commissioner, 118 T.C. at
505. Thus, under Ewing I, in a case where tax may or may not
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