David Bruce Billings - Page 53

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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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