dissenting: With all due respect, I am not persuaded by the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit)1 or the U.S. Court of Appeals for the Eighth Circuit (Eighth Circuit)2 that the Court erred in holding in Ewing I that the Court had jurisdiction over the taxpayer’s claim in that case for relief under section 6015(f). Nor does the Court Opinion3 convince me that the Court should overrule that holding in Ewing I.
Neither the Ninth Circuit nor the Eighth Circuit expresses disagreement with, and the Court Opinion reaffirms, see Court op. pp. 12, 13, 14, 16-17, 18, the Court’s conclusion in Ewing I that, prior to the amendment in question of section 6015(e)(1),4 the Court’s jurisdiction to review claims for relief under section 6015 was not limited to claims for relief from taxes that may or may not have been underreported in returns, which taxpayers raised in either “deficiency” cases commenced in the Court pursuant to section 6213(a) or so-called stand-alone section 6015 “deficiency” cases, including so-called stand-alone section 6015(f) “deficiency” cases. That is to say, prior to the amendment of section 6015(e)(1) by the 2001 Consolidated Appropriations Act (amendment of section 6015(e)(1)), the Court’s jurisdiction to review claims for relief under section 6015 included claims for relief under section 6015(f) from all or a portion of any unpaid taxes (i.e., taxes not paid when returns were filed) in so-called stand-alone section 6015(f) “nondeficiency” cases.5 See Ewing v. Commissioner, 118 T.C. 494, 500-502 (2002), revd. 439 F.3d 1009 (9th Cir. 2006); see also Fernandez v. Commissioner, 114 T.C. 324 (2000); Butler v. Commissioner, 114 T.C. 276 (2000).
The question that the Court addressed sua sponte in Ewing I was whether the amendment of section 6015(e)(1) deprived the Court of its jurisdiction to review a claim for relief under section 6015(f) from all or a portion of any unpaid tax in a stand-alone section 6015(f) “nondeficiency” case. Ewing v. Commissioner, supra at 503. In resolving that question, the Court analyzed section 6015(e)(1) both before and after its amendment by the 2001 Consolidated Appropriations Act.6 Id. at 502-507. In analyzing that section after its amendment, the Court stated:
Our interpretation of section 6015(e) concerns the new language “against whom a deficiency has been asserted”. However, section 6015(e)(1)(A) still contains the provision giving this Court jurisdiction “to determine the appropriate relief available to the individual under this section” (emphasis added), which, as previously explained, we have held gives us jurisdiction over the propriety of equitable relief under section 6015(f). Equitable relief under section 6015(f) is, and always has been, available in nondeficiency situations. Under these circumstances, the amendment to section 6015(e)(1) referring to situations where “a deficiency has been asserted” and the retention of the language in that same section giving us jurisdiction over “the appropriate relief available to the individual under this section” creates an ambiguity. Therefore, it is appropriate to consult the legislative history of the amendment made by the Consolidated Appropriations Act, 2001. [Id. at 503-504.]
After having consulted the conference report accompanying the amendment of section 6015(e)(1), H. Conf. Rept. 106-1033, at 1023 (2000), 2000-3 C.B. 304, 353, the Court concluded:
The conference report indicates that the language “against whom a deficiency has been asserted” was inserted into section 6015(e) to clarify the proper time for making a request to the Commissioner for relief from joint and several liability for tax that may have been underreported on the return. Congress wanted to prevent taxpayers from submitting premature requests to the Commissioner for relief from potential deficiencies before the Commissioner had asserted that additional taxes were owed. Congress also wanted to make it clear that a taxpayer does not have to wait until after an assessment has been made before submitting a request to the Commissioner for relief under section 6015. Overall, the legislative history indicates that Congress was concerned with the proper timing of a request for relief for underreported tax and intended that taxpayers not be allowed to submit a request to the Commissioner regarding underreported tax until after the issue was raised by the IRS.
There is nothing in the legislative history indicating that the amendment of section 6015(e) by the Consolidated Appropriations Act, 2001, was intended to eliminate our jurisdiction regarding claims for equitable relief under section 6015(f) over which we previously had jurisdiction. The stated purpose for inserting the language “against whom a deficiency has been asserted” into section 6015(e) was to clarify the proper time for a taxpayer to submit a request to the Commissioner for relief under section 6015 regarding underreported taxes. * * *
[Id., at 505; fn. refs, omitted.]
Based upon the Court’s review of the language of section 6015(e)(1) both before and after its amendment by the 2001 Consolidated Appropriations Act, the legislative history of that act, and relevant caselaw, the Court held in Ewing I that the amendment of section 6015(e)(1) did not deprive it of its jurisdiction to review the denial of equitable relief under section 6015(f) with respect to unpaid tax in a standalone section 6015(f) “nondeficiency” case. Id. at 505-506. The Ninth Circuit reversed that holding in Ewing II. Shortly thereafter, in Bartman, the Eighth Circuit expressed its agreement with the Ninth Circuit.7
An appeal in this case normally would lie in the U.S. Court of Appeals for the Tenth Circuit. Consequently, the Court is not required to follow the opinions of the Ninth Circuit in Ewing II and the Eighth Circuit in Bartman (and in Sjodin). Golsen v. Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445 F.2d 985 (10th Cir. 1971). Nonetheless, because the Court Opinion concludes that those opinions “change the judicial landscape”, Court op. p. 16, it proceeds to reconsider Ewing I and decides to overrule it.8
I turn first to the Court Opinion to explain why I am not persuaded by that Opinion that the Court should overrule Ewing I. In deciding to overrule the Court’s holding in Ewing I, the Court Opinion concludes that that holding
becomes problematic, particularly when we consider that “deficiency” itself has a defined meaning — the amount by which the tax imposed by the Internal Revenue Code exceeds the amount reported on a return, including an amended return. We now hold, consistently with those opinions [Ewing II and Bartmari], that the phrase [“against whom a deficiency has been asserted”] establishes a condition precedent: A petitioner in this Court who seeks judicial review of a denial of relief must show that the Commissioner asserts that he owes more in tax than reported on his return. By amending section 6015 the way it did, Congress narrowed the class of individuals able to invoke our jurisdiction under section 6015(e)(1)(A) to those “against whom a deficiency has been asserted.” We cannot fairly read Congress’s phrasing of this qualification as other than a clear, though perhaps inadvertent, deprivation of our jurisdiction over nondeficiency stand-alone petitions. Placing that circumscription where it did, the “assertion of a deficiency” has become the “ticket to Tax Court” that notices of deficiency are in redetermination cases. [Court op. pp. 16-17.]
In asserting “that 'deficiency’ itself has a defined meaning — the amount by which the tax imposed by the Internal Revenue Code exceeds the amount reported on a return, •including an amended return”, Court op. p. 16, the Court Opinion apparently relies on section 301.6211-l(a), Proced. & Admin. Regs., see Court op. p. 12. In maintaining that the term “deficiency” has the meaning set forth in that regulation for all purposes of the Code, including section 6015, the Court Opinion fails to acknowledge, let alone discuss, a long line of cases holding that the term “return” in the Code generally means the original return.9 See, e.g., Badaracco v. Commissioner, 464 U.S. 386 (1984).10 The Court Opinion is wrong in maintaining that the meaning of the term “deficiency” set forth in section 301.6211-l(a), Proced. & Admin. Regs., applies for all purposes of the Code.
I agree with the Court Opinion that in the instant case there would be no “deficiency” extant after petitioner and his spouse filed their joint amended return if the meaning of that term in section 301.6211-l(a), Proced. & Admin. Regs., were applicable for purposes of section 6015.11 However, the Court Opinion does not consider, let alone answer, whether and why that meaning, and not the meaning established in cases such as Badaracco v. Commissioner, supra, should apply for purposes of section 6015, including section 6015(e)(1).12 The term “deficiency” that appears in section 6015(e)(1) in the phrase “against whom a deficiency has been asserted” is not clear, plain, or unambiguous. The Court’s consideration in Ewing I of the legislative history of the amendment of section 6015(e)(1) was proper.
Even assuming arguendo that the term “deficiency” that appears in section 6015(e)(1) in the phrase “against whom a deficiency has been asserted” were to have the meaning that the Court Opinion says it has, the Court Opinion’s conclusions that rest on that premise are nonetheless logically flawed. It is a non sequitur for the Court Opinion to conclude that, because “‘deficiency’ itself has a defined meaning — the amount by which the tax imposed by the Internal Revenue Code exceeds the amount reported on a return, including an amended return”, Court op. p. 16, the phrase “against whom a deficiency has been asserted” (1) is “clear”, “plain”, and “not ambiguous”, Court op. p. 17; (2) establishes a “condition precedent” to the Court’s jurisdiction under section 6015, Court op. p. 16; and (3) results in a “deprivation of our jurisdiction over nondeficiency stand-alone petitions”, Court op. p. 17. The meaning that the Court Opinion gives to the term “deficiency” that appears in section 6015(e)(1) in the phrase “against whom a deficiency has been asserted” does not give meaning to that entire phrase; it only gives the meaning that the Court says it has to the term “deficiency” used in that phrase. The phrase “against whom a deficiency has been asserted” is not clear, plain, or unambiguous. Despite its assertions to the contrary, see Court op. p. 17, the Court Opinion acknowledges as much, see Court op. p. 15 note 7. The Court’s consideration in Ewing I of the legislative history of the amendment of section 6015(e)(1) was proper.
In pointing out the Eighth Circuit’s interchangeable use in Bartman of terms such as “assertion of a deficiency”, “determination of a deficiency”, “issue of a notice of deficiency”, and “assessment of a deficiency” (discussed below), the Court Opinion states:
Future cases may well show that Congress meant to give us jurisdiction when a deficiency was “asserted” because it wanted to allow taxpayers to petition for relief well before the IRS sends out a notice of deficiency or makes an assessment — perhaps as soon as issuance of a revenue agent’s report, or some other time during an examination, when the IRS first “states that additional taxes may be owed.” H. Conf. Rept. 106-1033, at 1023 (2000) (quoted in Ewing I, 118 T.C. at 504).
The terms “determination” and “assessment” are not customarily regarded as synonyms in tax law. A “determination” is the IRS’s final decision, see, e.g., secs. 6212(a), 6230(a)(3)(B)). And an “assessment” is the specific procedure by which the IRS officially records a liability, see sec. 6203, triggering its power to collect taxes administratively. (The Code generally bars the IRS from assessing taxes that are being contested in our Court. See sec. 6213(a).)
We note too that, although notices of deficiency establish jurisdiction in most of our cases, see Bartman, 446 F.3d at 787, Congress has given us jurisdiction over cases in which there need be no deficiency — for example, review of the Commissioner’s determinations after IRS collection due process hearings. Sec. 6330(d)(1). However, because there was no deficiency lurking in this case at all,E13J we need not decide whether an “assertion of deficiency” is synonymous with a “notice of deficiency,” much less an “assessment”, in defining the limits of our jurisdiction under section 6015(e). * * *
[Court op. p. 15 note 7; see also Court op. p. 15.]
Despite assertions to the contrary that appear in the Court Opinion, see Court op. pp. 16, 17, 18, the excerpt quoted above leaves no doubt that the Court Opinion concludes that the phrase “against whom a deficiency has been asserted” may have any one of several possible meanings. The Court Opinion thus acknowledges that that phrase is ambiguous. The internal inconsistency in the Court Opinion as to whether the phrase “against whom a deficiency has been asserted” is ambiguous is another material flaw in that Opinion. Having concluded that that phrase is ambiguous, the Court Opinion should have considered the legislative history of the amendment of section 6015(e)(1), as the Court properly did in Ewing I, in order to determine its meaning as used in section 6015(e)(1).
Although the Court Opinion concludes that the phrase “against whom a deficiency has been asserted” is ambiguous, see Court op. p. 15 note 7, it also concludes, inconsistently, that that phrase is “clear”, “plain”, and “not ambiguous”, Court op. p. 17. Having concluded, albeit inconsistently, that the phrase “against whom a deficiency has been asserted” is not ambiguous, the Court Opinion should have interpreted that phrase according to its language. It did not. The Court Opinion holds that the phrase “against whom a deficiency has been asserted” requires that “A petitioner in this Court who seeks judicial review of a denial of relief must show that the Commissioner asserts that he owes more in tax than reported on his return.” Court op. p. 16 (emphasis added). The Court Opinion’s holding uses the present tense “asserts”. In contradistinction, section 6015(e)(1) uses “has been asserted”. By using the present tense, which is not found in section 6015(e)(1) in the phrase “against whom a deficiency has been asserted”, the Court Opinion reads into that phrase a requirement that is not in that section. Having read such a requirement into section 6015(e)(1), the Court Opinion makes matters worse by failing to specify when the taxpayer must satisfy that requirement. Thus, the Court Opinion is unclear as to whether it requires a taxpayer who files a petition with the Court seeking section 6015 relief to show, at the time the taxpayer files the petition, thereafter during the pendency of the section 6015 Court proceeding, and/or at some other time, that “the Commissioner asserts that he [the taxpayer] owes more in tax than reported on his [the taxpayer’s] return.”14 Court op. p. 16.
The only thing about the phrase “against whom a deficiency has been asserted” that is beyond question is that it does not require, as the Court Opinion does, more than that “a deficiency has been asserted” at some point in time.15 The Court Opinion is wrong to read the words “has been asserted” out of the phrase “against whom a deficiency has been asserted” and to read the word “asserts” into that phrase.
Although the Court Opinion declines to consider the legislative history of the amendment of section 6015(e)(1) in order to interpret the phrase “against whom a deficiency has been asserted”, it nonetheless offers the following criticism of the Court’s reliance on that legislative history in Ewing I:
The amendment’s history shows no indication that Congress was thinking about nondeficiency relief under subsection (f) at all. And, whatever the merits of using legislative history to overcome the plain language of a statute, the merits of using the absence of legislative history to overcome the plain language of the statute must necessarily be weaker. Reasoning that a partial repeal of our jurisdiction would have to be in the legislative history to be effective is, we think, a misreckoning after Ewing I and Bartman. [Court op. p. 17; fn. ref. omitted.]
The Court Opinion does not explain why “Reasoning that a partial repeal of our jurisdiction would have to be in the legislative history to be effective is * * * a misreckoning after Ewing I and Bartman” Id. In any event, I disagree with that conclusion, even though I agree with the Court Opinion that the legislative history of the amendment of section 6015(e)(1) does not indicate that, in adding the phrase “against whom a deficiency has been asserted”, Congress had in mind a stand-alone section 6015(f) “nondeficiency” case. That is precisely the point that the Court was making in Ewing I. In amending section 6015(e)(1), Congress had in mind only the proper timing of a request for relief from underreported tax in a return, namely, a “deficiency” situation. Ewing v. Commissioner, 118 T.C. at 505. Congress did not have in mind a stand-alone section 6015(f) “nondefi-ciency” case when it amended section 6015(e)(1) by adding the phrase “against whom a deficiency has been asserted”. Since Congress did not have in mind such a case when it enacted the amendment of section 6015(e)(1), Congress could not have had in mind depriving, and Congress could not have intended to deprive, the Court of the jurisdiction that the Court had over such a case prior to that amendment. Id. at 504-505. If Congress had intended to deprive the Court of the jurisdiction that it had prior to the amendment of section 6015(e)(1) over a stand-alone section 6015(f) “nondeficiency case”, it would have expressly and clearly so stated in the legislative history of that amendment. It did not. The silence of Congress is strident.16
I turn now to the Eighth Circuit’s opinion in Bartman to explain why I am not persuaded by that opinion that the Court should overrule Ewing I. As discussed above, the Court Opinion points out, Court op. p. 15 note 7, that the Eighth Circuit in Bartman interchangeably used terms such as “determination of a deficiency”, “issue of a notice of deficiency’, and “assessed deficiency’, even though those terms are not synonymous in the Federal tax law. The Eighth Circuit in Bartman also interchangeably used those terms with the phrase “a deficiency has been asserted” in section 6015(e)(1), evidently having concluded that all of those terms are synonymous in the Federal tax law.17 As the legislative history of section 6015(e)(1) recognizes,18 those terms are not synonymous in the Federal tax law. The Commissioner “determines that there is a deficiency” in a document known as a “notice of deficiency” that the Commissioner sends or issues to the taxpayer. See sec. 6212(a). An “assessment” is the procedure by which the Commissioner officially records a tax liability. See sec. 6203. However, there are limitations on the authority of the Commissioner to assess a “deficiency” that the Commissioner has “determined”. See, e.g., secs. 6213, 6215. An “assessment” by the Commissioner is required before the Commissioner may proceed to collect a tax liability. See sec. 6502.
Although the Eighth Circuit in Bartman interchangeably used terms that are not synonymous in the Federal tax law, after a careful reading of the Eighth Circuit’s opinion in Bartman (and its opinion in Sjodin that relied on Bartman), I believe that the Eighth Circuit in Bartman (and in Sjodin) construed the language “a deficiency has been asserted” that appears in the phrase “against whom a deficiency has been asserted” to mean “a deficiency has been determined” by the Commissioner in a notice of deficiency.19 In reaching that conclusion, the Eighth Circuit may have been misled by the position that the Government advanced on appeal in Bartman (and in Sjodin).20 In the briefs that the Government filed in Bartman (and in Sjodin),21 the Government argued that the language “a deficiency has been asserted” that appears in the phrase “against whom a deficiency has been asserted” means “a deficiency has been determined” by the Commissioner. As explained above, the Commissioner “determines that there is a deficiency” in a document called a “notice of deficiency” that the Commissioner sends to the taxpayer. The legislative history of the amendment of section 6015(e)(1) belies the position of the Government on appeal in Bartman (and in Sjodin)22 See supra note 18.
In apparently adopting the position advanced to it by the Government, the Eighth Circuit has not interpreted the phrase “against whom a deficiency has been asserted” that it held was “clear and unambiguous” and “plain,” Bartman v. Commissioner, 446 F.3d 785, 787, 788 (8th Cir. 2006), affg. in part and vacating in part T.C. Memo. 2004-93, according to the language in that phrase. Instead, it has construed that phrase and gave it a meaning that is contrary to, and not apparent from, the language in that phrase.23
I turn finally to the Ninth Circuit’s opinion in Ewing II to explain why I am not persuaded by that opinion that the Court should overrule Ewing I. According to the Ninth Circuit, the language of the amendment of section 6015(e)(1) is “plain”, Commissioner v. Ewing, 439 F.3d at 1013; “by interpreting the statute as not requiring the assertion of a deficiency, the Tax Court simply has written the language out of the statute”, id. at 1014; and by doing so, the Tax Court violated “the basic principle of statutory construction that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant’ ”, id.
With respect to the Ninth Circuit’s conclusion in Ewing II that the language “against whom a deficiency has been asserted” is “plain”, the Court Opinion in the instant case and the Eighth Circuit’s opinions in Bartman and Sjodin belie that conclusion.
With respect to the Ninth Circuit’s conclusions in Ewing II that in Ewing I the Court wrote the language “against whom a deficiency has been asserted” out of section 6015(e)(1), thereby making that phrase, “superfluous, void, or insignificant”, id., and violating a basic principle of statutory construction, id., that is not what the Court did in Ewing I. The Court found in Ewing I that Congress added the phrase “against whom a deficiency has been asserted” to section 6015(e)(1) in order to prevent a taxpayer from making a claim for relief under section 6015 until a “deficiency has been asserted” only in a situation where tax may or may not have been underreported in a return, namely, only in a “deficiency” situation. Ewing v. Commissioner, 118 T.C. at 505. Thus, under Ewing I, in a case where tax may or may not 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.See Commissioner v. Ewing, 439 F.3d 1009 (9th Cir. 2006) (Ewing II), revg. 118 T.C. 494 (2002) (Ewing I). In light of the Ninth Circuit’s holding in Ewing II, the Ninth Circuit vacated Ewing v. Commissioner, 122 T.C. 32 (2004), which addressed issues unrelated to the jurisdictional issue that the Court considered in Ewing I.
See Bartman v. Commissioner, 446 F.3d 785 (8th Cir. 2006) (Bartman), affg. in part and vacating in part T.C. Memo. 2004-93; see also Sjodin v. Commissioner, _Fed. Appx._, 97 AFTR 2d 2006-2622 (8th Cir. 2006) (Sjodin), vacating and remanding per curiam T.C. Memo. 2004-205.
I refer to the “Court Opinion”, and not to the “majority opinion”, because a majority of the Court’s Judges did not join the Opinion of the Court.
The phrase “against whom a deficiency has been asserted” was added to sec. 6015(e)(1), effective on Dec. 21, 2000, by the Consolidated Appropriations Act, 2001 (2001 Consolidated Appropriations Act), Pub. L. 106-554, app. G, sec. 313, 114 Stat. 2763A-641 (2000). Essentially the same phrase was added to sec. 6015(c)(3)(B), effective on the same date, by the 2001 Consolidated Appropriations Act. Id. After that amendment, sec. 6015(c)(3)(B) provides:
(B) Time for election.— An election under this subsection for any taxable year may be made at any time after a deficiency for such year is asserted but not later than 2 years after the date on which the Secretary has begun collection activities with respect to the individual making the election. [Emphasis added.]
Relief is available under see. 6015(f) if, “taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency (or any portion of either)”, and relief is not otherwise available to the taxpayer under sec. 6015(b) or (c).
In analyzing sec. 6015(e)(1) as amended by the 2001 Consolidated Appropriations Act, the Court relied on the following rules of statutory construction:
In interpreting section 6015(e), our purpose is to give effect to Congress’s intent. * * * We begin with the statutory language, and we interpret that language with reference to the legislative history primarily to learn the purpose of the statute and to resolve any ambiguity in the words contained in the language. * * ‡ Usually, the plain meaning of the statutory language is conclusive. * * * If the statute is ambiguous or silent, we may look to the statute’s legislative history to determine Congressional intent. * * * Finally, because the changes to the relief from joint and several liability rules “were designed to correct perceived deficiencies and inequities in the prior version” of the rules, this curative legislation should be construed liberally to effectuate its remedial purpose. * * * [Ewing v. Commissioner, 118 T.C. at 503.]
The Eighth Circuit followed Bartman in Sjodin v. Commissioner, _Fed. Appx._, 97 AFTR 2d 2006-2622 (8th Cir. 2006).
In overruling Ewing I and holding that the Court does not have jurisdiction over the instant case, the Court Opinion acknowledges that “Billings’s position is not a weak one.” Court op. p. 10. Nonetheless, having held that the Court does not have jurisdiction over the instant case, the Court Opinion directs that an order be entered dismissing this case for lack of jurisdiction. Court op. p. 18. In doing so, perhaps the Court Opinion finds solace in its suggestion, which I consider to be an inappropriate and questionable suggestion, that “it is quite possible that the district courts will be the proper forum for review of the Commissioner’s denials of relief in non-deficiency stand-alone cases.” Court op. p. 18.
Perhaps the Court Opinion believes that the parties implicitly agree that the meaning attributed by the Court Opinion to the term “deficiency” in sec. 6015 is correct because they “stipulated that * * * [petitioner] did not qualify for relief under either section 6015(b) or (c) because no deficiency was ever asserted against him and his wife.” Court op. p. 11. Suffice it to say that the Court is not bound by any stipulation of the parties as to the law. Godlewski v. Commissioner, 90 T.C. 200, 203 n.5 (1988); Sivils v. Commissioner, 86 T.C. 79, 82 (1986).
In Badaracco v. Commissioner, 464 U.S. 386, 393-394 (1984), the Supreme Court of the United States stated:
Indeed, as this Court recently has noted, Hillsboro National Bank v. Commissioner, 460 U. S. 370, 378-380, n. 10 (1983), the Internal Revenue Code does not explicitly provide either for a taxpayer’s filing, or for the Commissioner’s acceptance, of an amended return; instead, an amended return is a creature of administrative origin and grace. Thus, when Congress provided for assessment at any time in the case of a false or fraudulent “return,” it plainly included by this language a false or fraudulent original return. In this connection, we note that until the decision of the Tenth Circuit in Dowell v. Commissioner, 614 F. 2d 1263 (1980), cert. pending, No. 82-1873, courts consistently had held that the operation of § 6501 and its predecessors turned on the nature of the taxpayer’s original, and not his amended, return.8
The significance of the original, and not the amended, return has been stressed in other, but related, contexts. It thus has been held consistently that the filing of an amended return in a nonfraudulent situation does not serve to extend the period within which the Commissioner may access a deficiency. See, e.g., Zellerbach Paper Co. v. Helvering, 293 U.S. 172 (1934); National Paper Products Co. v. Helvering, 293 U. S. 183 (1934); National Refining Co. v. Commissioner, 1 B.T.A. 236 (1924). It also has been held that the filing of an amended return does not serve to reduce the period within which the Commissioner may assess taxes where the original return omitted enough income to trigger the operation of the extended limitations period provided by § 6501(e) or its predecessors. See, e.g., Houston v. Commissioner, 38 T.C. 486 (1962); Goldring v. Commissioner, 20 T.C. 79 (1953). And the period of limitations for filing a refund claim under the predecessor of § 6511(a) begins to run on the filing of the original, not the amended, return. Kaltreider Construction, Inc. v. United States, 303 F.2d 366, 368 (CA3), cert. denied, 371 U. S. 877 (1962).
That there would be no “deficiency” extant after petitioner and his spouse filed their joint amended return if the definition of that term in sec. 301.6211-l(a), Proced. & Admin. Regs., were applicable for purposes of sec. 6015 does not answer the question whether “a deficiency has been asserted” for purposes of sec. 6015(e)(1). See discussion below. Nor does it answer the question whether there is (1) a “deficiency”, or an “understatement of tax”, for purposes of sec. 6015(b) or (2) a “deficiency” for purposes of sec. 6015(c). Sec. 6015(b)(1)(B) requires that there be an “understatement of tax” in the return in order to obtain relief under sec. 6015(b). Sec. 6015(b)(1)(D) refers to whether it is inequitable to hold the taxpayer liable “for the deficiency in tax for such taxable year attributable to such understatement”. Sec. 6015(b)(3) provides that the term “understatement” is defined by sec. 6662(d)(2)(A). Sec. 6662(d)(2)(A) generally defines that term as the excess of “the amount of the tax required to be shown on the return” over “the amount of the tax * * * shown on the return”. Nothing in sec. 6015(b) requires that “a deficiency has been asserted”.
The Court Opinion’s ipse dixit that, for all purposes of the Code, the only meaning of the term “deficiency” is that set forth in sec. 301.6211-l(a), Proced. & Admin. Regs., not only ignores caselaw holding to the contrary, it also disregards that nothing in sec. 6015 requires a "deficiency” (or “understatement of tax”) to continue to exist at any time after a taxpayer files an original return.
I disagree that “there was no deficiency lurking in this case at all”. There was a “deficiency” with respect to the original return filed by petitioner and his spouse. Nothing in the Court Opinion adequately explains why that “deficiency’ with respect to the original return is not the “deficiency” in the phrase “against whom a deficiency has been asserted” in sec. 6015(e)(1). Nor does anything in the Court Opinion adequately explain why it apparently assumes that a “deficiency” must continue to exist at the time a claim for relief under sec. 6015(b) is made. See discussion above and below.
If the Court Opinion intends by its use of the present tense “asserts” to impose a jurisdictional requirement that, at the time a petition is filed and thereafter during the pendency of the sec. 6015 Court proceeding, the Commissioner must be asserting that the taxpayer “owes more in tax than reported on his [the taxpayer’s] return”, such a holding would result in the Court’s not having jurisdiction over a case in which “a deficiency has been asserted” at some point in time in the administrative process and an ultimate determination has been made while the case is pending in a sec. 6015 Court proceeding that there is no “deficiency”. I believe that any such result would be wrong, even assuming arguendo that the Court Opinion were correct that the phrase “against whom a deficiency has been asserted” is a jurisdictional requirement.
Not only does the Court Opinion’s holding read out of sec. 6015(e)(1) the words “has been asserted” in the phrase “against whom a deficiency has been asserted”, it reads into that phrase the requirement that “the Commissioner” be asserting a “deficiency”. Sec. 6015(e)(1) is silent, and thus ambiguous, regarding who must have asserted the “deficiency”. If the Court Opinion were correct that the phrase “against whom a deficiency had been asserted” is “clear”, “plain”, and “not ambiguous”, Court op. p. 17, it would be inappropriate to consult the legislative history of the amendment of sec. 6015(e) in order to determine who must have asserted the “deficiency”. However, it would be proper to consult the dictionary definition of the word “assert”. The definition of the word “assert” in Webster’s Third New International Dictionary Unabridged 131 (1993) is “state or affirm positively”. Thus, petitioner could have “asserted” for purposes of sec. 6015(e)(1) a “deficiency” when he and his spouse filed their amended return and/or the Commissioner could have “asserted” a “deficiency” when the Commissioner assessed the increase in the tax shown in that amended return, which was attributable to the “deficiency” with respect to the original return. The point is that sec. 6015(e)(1) is not plain or clear regarding who must have asserted a “deficiency”. It is thus necessary to consult the legislative history of the amendment of sec. 6015(e).
The Court Opinion seems to recognize as much when it states:
Future cases may well show that Congress meant to give us jurisdiction when a deficiency was “asserted” because it wanted to allow taxpayers to petition for relief well before the IRS sends out a notice of deficiency or makes an assessment — perhaps as soon as issuance of a revenue agent’s report, or some other time during an examination, when the IRS first “states that additional taxes may be owed.” * * * [Court op. p. 15 note 7.]
Senators Feinstein and Kyi recently introduced S. 3523, 109th Cong., 2d Sess., sec. 1 (2006), that would clarify that the Court has jurisdiction under sec. 6015(e) to review all claims for relief under sec. 6015(f). In introducing that bill, Senator Feinstein stated: "this bill clarifies the statute’s original intent”. 152 Cong. Rec. S5962 (daily ed. June 15, 2006).
To illustrate, the Eighth Circuit stated in Bartman:
The IRS did not determine a deficiency against Bartman for tax year 1997. Bartman cites Ewing v. Comm’r, 118 T.C. 494, 2002 WL 1150775 (2002), where the tax court found that it had jurisdiction to review a petition from a denial of a request for § 6015 relief, despite the fact that no notice of deficiency had been issued. Since briefing and oral argument in this case, however, the Ninth Circuit reversed the tax court and held that the tax court has no jurisdiction under § 6015(e) to consider a petition for review where no deficiency was determined by the IRS. Comm’r v. Ewing, 439 F.3d 1009, 1012-14 (9th Cir. 2006). We agree with the Ninth Circuit that the tax court lacks jurisdiction under § 6015(e) unless a deficiency was asserted against the individual petitioning for review. The language of § 6015(e)(1) is clear and unambiguous: an individual may petition the tax court for review “[i]n the case of an individual against whom a deficiency has been asserted and who elects to have subsection (b) and (c) apply. . . .” 26 U.S.C. § 6015(e)(1) (emphasis added). As such, we end our inquiry into the meaning of the statute and apply its plain language. Citicasters v. McCaskill, 89 F.3d 1350, 1354-55 (8th Cir. 1996); Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1440 (8th Cir. 1993) (en banc). Applying the statute’s plain language, we hold that the tax court had no jurisdiction to review Bartman’s petition for review of the IRS’s denial of her tax year 1997 refund request because no deficiency had been assessed against Bartman for tax year 1997. [Bartman v. Commissioner, 446 F.3d at 787-788. Emphasis added; fn. ref. omitted.]
The conference report accompanying the 2001 Consolidated Appropriations Act states in pertinent part:
Timing of request for relief. — Confusion currently exists as to the appropriate point at which a request for innocent spouse relief should be made by the taxpayer and considered by the IRS. Some have read the statute to prohibit consideration by the IRS of requests for relief until after an assessment has been made, i.e., after the examination has been concluded, and if challenged, judicially determined. Others have read the statute to permit claims for relief from deficiencies to be made upon the filing of the return before any preliminary determination as to whether a deficiency exists or whether the return will be examined. * * * Congress did not intend that taxpayers be prohibited from seeking innocent spouse relief until after an assessment has been made; Congress intended the proper time to raise and have the IRS consider a claim to be at the same point where a deficiency is being considered and asserted by the IRS. This is the least disruptive for both the taxpayer and the IRS since it allows both to focus on the innocent spouse issue while also focusing on the items that might cause a deficiency. * 4 * The bill clarifies the intended time by permitting the election under [section 6015] (b) and (c) to be made at any point after a deficiency has been asserted by the IRS. A deficiency is considered to have been asserted by the IRS at the time the IRS states that additional taxes may be owed. Most commonly, this occurs during the Examination process. It does not require an assessment to have been made, nor does it require the exhaustion of administrative remedies in order for a taxpayer to be permitted to request innocent spouse relief. [H. Conf. Rept. 106-1033, at 1022-1023 (2000), 2000-3 C.B. 304, 352-353.]
Before the Eighth Circuit in Bartman began to use interchangeably various terms that have different meanings in the Federal tax law, see supra note 17, the Eighth Circuit stated:
Congress created the United States Tax Court “to provide taxpayers with a means of challenging assessments made by the Commissioner without first having to pay the alleged deficiency. Without such a forum, taxpayers would have to pay the asserted deficiency and then initiate a suit in federal district court for a refund.” Samuels, Kramer & Co. v. Comm’r, 930 F.2d 975, 979 (2d Cir. 1991). As an Article I court, the tax court is a court of “strictly limited jurisdiction.” Kelley v. Comm’r, 45 F.3d 348, 351 (9th Cir. 1995). A notice of deficiency issued by the IRS pursuant to § 6212 is the taxpayer’s jurisdictional “ticket to the Tax Court.” Bokum v. Comm’r, 992 F.2d 1136, 1139 (11th Cir. 1993) (quoting Stoecklin v. Comm’r, 865 F.2d 1221, 1224 (11th Cir. 1989)); Spector v. Comm’r, 790 F.2d 51, 52 (8th Cir. 1986) (per curiam) (citing Laing v. United States, 423 U.S. 161, 165, 96 S.Ct. 473, 46 L. Ed. 2d 416 n. 4 (1976), and holding that “the determination of a deficiency and the issue of a notice of deficiency is an absolute precondition to tax court jurisdiction”). Accordingly, the IRC provides that the tax court has jurisdiction over petitions for review from determinations regarding the availability of § 6015 relief only where a deficiency has been asserted against the taxpayer. § 6015(e)(1). [Bartman v. Commissioner, 446 F.3d at 787.]
I also read the Eighth Circuit’s opinion in Sjodin, which relied on Bartman, as construing the language “a deficiency has been asserted” to mean “a deficiency has been determined” by the Commissioner in a notice of deficiency issued to the taxpayer. Thus, the Eighth Circuit stated in Sjodin: “This circuit has recently concluded [in Bartman] that the issuance of a deficiency by the IRS is a prerequisite for tax court jurisdiction over a petition for review from an IRS determination regarding relief available under § 6015.” Sjodin v. Commissioner,_Fed. Appx. _, 97 AFTR 2d 2006-2622 (emphasis added).
The Government took the same position on appeal of Ewing I to the Ninth Circuit.
See supra note 20.
See supra note 20.
The only reasonable alternative to my reading of the Eighth Circuit’s opinion in Bartman is that, because of the Eighth Circuit’s interchangeable use of various terms that are not synonymous in the Federal tax law, that Court’s holding as to the meaning of the phrase “against whom a deficiency has been asserted” is ambiguous. In this connection, I note that the Court Opinion states: “We construe Bartman’s holding to be the sentence We agree with the Ninth Circuit that the tax court lacks jurisdiction under § 6015(e) unless a deficiency was asserted against the individual petitioning for review’”. Court op. p. 15 note 7 (emphasis added). That statement of the Court Opinion ignores what the Eighth Circuit stated its holding to be in Bartman. The Eighth Circuit stated: “Applying the statute’s plain language, we hold that the tax court had no jurisdiction to review Bartman’s petition for review of the IRS’s denial of her tax year 1997 refund request because no deficiency had been assessed against Bartman for tax year 1997.” Bartman v. Commissioner, supra at 788 (emphasis added).
Ewing 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(0 in a stand-alone sec. 6015(0 “nondeficiency” case. See Ewing v. Commissioner, 118 T.C. at 506.