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I do not believe that the opinions of the U.S. Courts of
Appeals for the Eighth and Ninth Circuit “change the judicial
landscape”. See Court op. p. 16. The reasoning and analysis of
the U.S. Courts of Appeals for the Eighth and Ninth Circuit is
essentially the reasoning and analysis of the dissent in Ewing I.
See Bartman v. Commissioner, 446 F.3d 785, 787-788 (8th Cir. May
2, 2006); Ewing v. Commissioner, 439 F.3d at 1013-1015; Ewing I,
supra at 510-528 (Laro, J., dissenting). These views (i.e., of
the U.S. Courts of Appeals for the Eighth and Ninth Circuit and
of the dissent in Ewing I) were before this Court in Ewing I;
they were given serious consideration; and they were rejected.
Accordingly, when a Court of Appeals reverses our original
decision but neither addresses any new arguments nor provides any
new analysis, as is the case herein, I do not believe we should
reverse our original decision. Respectfully, I dissent.
SWIFT, J., agrees with this dissenting opinion.
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