- 47 - 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 notPage: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
Last modified: May 25, 2011