- 49 -
VASQUEZ, J., dissenting: Respectfully, I do not believe we
should reverse our decision in Ewing v. Commissioner, 118 T.C.
494 (2002) (Ewing I), revd. 439 F.3d 1009 (9th Cir. 2006).
We have previously considered what we should do when an
issue comes before us a second time after a Court of Appeals has
reversed a prior Tax Court opinion on the same point. Lardas v.
Commissioner, 99 T.C. 490, 494 (1992). In Lawrence v.
Commissioner, 27 T.C. 713, 716-717 (1957), revd. 258 F.2d 562
(9th Cir. 1958), we decided that, although we should seriously
consider the reasoning of the Court of Appeals which reversed our
decision, we ought not follow the reversal if we believe it is
incorrect. See Lardas v. Commissioner, supra.
The Tax Court, being a tribunal with national
jurisdiction over litigation involving the
interpretation of Federal taxing statutes which may
come to it from all parts of the country, has * * *
[an] obligation to apply with uniformity its
interpretation of those statutes. That is the way it
has always seen its statutory duty and, with all due
respect to the Courts of Appeals, it cannot
conscientiously change unless Congress or the Supreme
Court so directs. [Lawrence v. Commissioner, supra at
719-720.]
This case is not governed by the Golsen doctrine. See Court
op. pp. 7, 16. In Ewing I, we interpreted the statute. If
Congress disagrees with that interpretation, then Congress can
revise the statute to provide otherwise. Neal v. United States,
516 U.S. 284, 295-296 (1996).
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