David Bruce Billings - Page 47

                                       - 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 not               





Page:  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