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. 11, 15. 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).
I do not believe that the opinions of the U.S. Courts of Appeals for the Eighth and Ninth Circuits “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 Circuits 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); Commissioner v. Ewing, 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 Circuits 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.