July 25, 2006
Divided Tax Court Overrules Ewing, Follows 8th & 9th Circuits on § 6015(e)
A sharply divided Tax Court today, in Billings v. Commissioner, 127 T.C. No. 2 (7/25/06), overruled its decision in Ewing v. Commissioner, 118 T.C. 494 (2002). The majority held that it lacks jurisdiction over nondeficiency stand-alone petitions seeking innocent spouse equitable relief under § 6015(e) where the IRS has not asserted a claim against the spouse, following the holdings in Commissioner v. Ewing, 439 F.3d 1009 (9th Cir. 2006), and Bartman v. Commissioner, 446 F.3d 785, 787 (8th Cir. 2006). There was a concurrence and three separate dissents:
- Majority Opinion (20 pages) by Holmes, joined by Halpern, Thornton & Kroupa
- Concurring Opinion (4 pages) by Laro, joined by Foley, Haines, Goeke & Wherry
- Dissenting Opinion (24 pages) by Chiechi, joined by Colvin, Cohen, Swift, Wells, Gale & Marvel
- Dissenting Opinion (2 pages) by Vasquez, joined by Swift
- Dissenting Opinion (14 pages) by Marvel, joined by Cohen & Swift
Update: Stuart Levine has more here.
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8th Circuit has Motion For Rehearing/Rehearing in Banc under consideration in Bartman. Government has filed its Response. Issue on rehearing is whether the deficiency only requirement to pre-payment review results in a denial of Bartman's equal protection right of equal access to the court as there is no right to a CDP hearing in the refund offset situation.
Posted by: Jack Schiffman | Jul 29, 2006 9:11:24 PM