David Bruce Billings - Page 48

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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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