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have been underreported in a return, and only in such a case,
must “a deficiency * * * [have] been asserted” in order for the
Court to have jurisdiction over such a case.24 See id.
Accordingly, Ewing I did not read the phrase “against whom a
deficiency has been asserted” out of section 6015(e)(1) as
amended by the 2001 Consolidated Appropriations Act and did not
make that phrase superfluous, void, or insignificant in violation
of a basic principle of statutory construction.
I am not persuaded by the Ninth Circuit’s opinion in Ewing
II, the Eighth Circuit’s opinions in Bartman and Sjodin, or the
Court Opinion in the instant case that the Court erred in Ewing
I. Consequently, I cannot in good conscience conclude that the
Court should overrule Ewing I, and I dissent.
COLVIN, COHEN, SWIFT, WELLS, GALE, and MARVEL, JJ., agree
with this dissenting opinion.
24Ewing I was not a case where tax may or may not have been
underreported in a return. Ewing I was a case where the tax due
shown in the return was not paid, the Commissioner assessed such
unpaid tax, and the taxpayer sought relief under sec. 6015(f) in
a stand-alone sec. 6015(f) “nondeficiency” case. See Ewing v.
Commissioner, 118 T.C. at 506.
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