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Court of Appeals for the Eighth Circuit in Commissioner v. Ewing,
439 F.3d 1009 (9th Cir. 2006), revg. Ewing v. Commissioner, 118
T.C. 494 (2002) (Ewing I) and vacating 122 T.C. 32 (2004), and
Bartman v. Commissioner, 446 F.3d 785 (8th Cir. 2006), affg. in
part and revg. in part T.C. Memo. 2004-93. Both the Court of
Appeals for the Ninth Circuit and the Court of Appeals for the
Eighth Circuit concluded that the language added to section
6015(e)(1) by the 2001 amendment was clear and unambiguous and
that the 2001 amendment limited our jurisdiction in section
6015(f) cases to those cases in which a deficiency has been
asserted. However, the Court of Appeals for the Eighth Circuit
in Bartman appears to have equated the language “against whom a
deficiency has been asserted” to a requirement that a section
6015(f) case must arise from a deficiency determination by the
Commissioner. See Bartman v. Commissioner, supra at 787 (Tax
Court has no jurisdiction over a section 6015 petitioner “where
no deficiency was determined by the IRS”).
The language that Congress chose to add to section
6015(e)(1) in 2001 stops far short of requiring that the
Commissioner must actually have determined a deficiency. The
determination of a deficiency is a technical concept that refers
to the action taken by the Commissioner after he evaluates a
taxpayer’s tax situation and finally concludes that the taxpayer
erred either in making a return that understated his tax
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