In any event, it is clear that the Congress required the Commissioner to provide the filing date deadline information on each notice of deficiency, a rule broader than the problem that gave rise to Congress' concern.

III. The Shotgun Behind the Door

In section 3463 of the 1998 Act, the Congress imposed an obligation on the Commissioner. The Congress contemplated that the Commissioner might err in carrying out this obligation, by putting the wrong filing deadline date on the notice of deficiency. Accordingly, in section 3463 of the 1998 Act, the Congress provided a consequence for such an error; the Commissioner is not allowed to "sandbag"3 the taxpayer, even inadvertently, by putting a date on the notice of deficiency that is after the last date for filing a timely petition. The Congress accomplished this in section 3463(b) of the 1998 Act by providing that a petition will be timely if it is filed by the date that the Commissioner set forth on the notice of deficiency. Consistent with the approach in section 3463(a) of the 1998 Act, the taxpayer's right to the subsection (b) relief is not affected by whether the taxpayer was in fact misled by the Commissioner's incorrect advice.

Thus, the Congress specifically provided a consequence to the Commissioner's failure to comply correctly. But, the majority in the instant case hold, there is not any consequence to the Commissioner's failure to comply at all. Not only is there not any consequence provided for in section 3463 of the 1998 Act under the majority's holdings, but there is not a shotgun behind the door.4 The effect of the majority's holding is to make section 3463(a) of the 1998 Act into mere surplusage. Section 3463(b) of the 1998 Act presumably would continue to operate in those instances where the Commissioner chose to specify in the notice of deficiency a cutoff date for filing a petition; subsection (c) would continue to provide an effective date; but under the majority's holdings, subsection (a) would not have effect.

The majority's construction "offends the well-settled rule of statutory construction that all parts of a statute, if at all possible, are to be given effect." Weinberger v. Hynson, Westcott

3 See, e.g., Barkins v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir. 1987) ("waiting until the expiration of the limitations period to point out an error recognizable well before"). 4 See Silver v. New York Stock Exchange, 373 U.S. 341, 352 (1963).

& Dunning, 412 U.S. 609, 633 (1973); see Fort Stewart Schools v. F.L.R.A., 860 F.2d 396, 403 (11th Cir. 1988), affd. 495 U.S. 641 (1990); Beisler v. Commissioner, 814 F.2d 1304, 1307 (9th Cir. 1987), affg. T.C. Memo. 1985–25.

We can interpret the statute so as to make it "work", and we can do so without arrogating to this Court the authority to make line-drawing decisions that normally are regarded as being within the province of the Congress.

Section 3463(a) of the 1998 Act directs the Commissioner to include certain information "on each notice of deficiency under section 6212 of the Internal Revenue Code of 1986". Respectfully, I would interpret this congressional command as an instruction that the Commissioner must comply with in order to have a valid notice of deficiency. It is simple for the Commissioner to comply with this congressional command. It is simple for a reviewing court (ordinarily, this Court) to determine whether this congressional command has been complied with in any specific instance.5 The power to determine the validity of a notice of deficiency is one that clearly is within this Court's arsenal of powers. The exercise of this power does not draw us into the uncertainties of limitations periods and restrictions on assessments that may well result from other proposals.

Although invalidation of the notice of deficiency may provide a windfall to some taxpayers, such windfalls are wholly within the power, and it may be, the technology, of the Commissioner to eliminate entirely.

Invalidating the notice of deficiency under these circumstances may be regarded as legislating, but—

We often must legislate interstitially to iron out inconsistencies within a statute or to fill gaps resulting from legislative oversight or to resolve ambiguities resulting from a legislative compromise. [U.S. Bulk Carriers v. Arguelles, 400 U.S. 351, 354 (1971); fn. ref. omitted.]

Invalidating the notice of deficiency is consistent with the statutory scheme; it will put the shotgun back behind the door.

5 Sec. 7522(a) provides that notices of deficiency and other specified documents must include descriptions of the bases for certain matters. The adequacy of any such description may fairly be open to dispute. The statute provides that "An inadequate description *** shall not invalidate such notice." This contrasts sharply with the requirement of sec. 3463(a) of the 1998 Act, where proper compliance ordinarily is not open to dispute.

We have on other occasions refrained from such interstitial legislation and left the statute with meaningless provisions. But we have done so only reluctantly, and after making substantial efforts to give effect to all the statutory language; and we have acknowledged when our efforts failed. See, e.g., Adams v. Commissioner, 70 T.C. 373 (1978), 70 T.C. 446 (1978), 72 T.C. 81 (1979), affd. without published opinion 688 F.2d 815 (2d Cir. 1982).6 In that instance, our continuing respectful dialogue with the Congress resulted in the enactment of the Act of Dec. 24, 1980, Pub. L. 96-596, 94 Stat. 3469 (even before Adams was affirmed), which revised the law to resolve the problems we had struggled with.

The majority's holdings in the instant case make part of the statute meaningless. There is a way to give effect to the entire statute, and to do so within our normal range of powers and in a way that is not likely to lead us into difficult interpretative and practical problems. The majority reject that approach.

Respectfully, I dissent.

GALE and MARVEL, JJ., agree with this dissenting opinion.

SWIFT, J., dissenting: I generally agree with the analysis set forth in Judge Foley's dissent and with his suggested conclusion that the petition herein be treated as timely.

In this case, however, I would not conclude, as a matter of law, that respondent's failure to provide in the notice of deficiency the specific due date for filing a Tax Court petition automatically provides the taxpayer an unlimited period of time to do so. Respondent's failure to provide the due date should extend the deadline for the filing of a Tax Court petition for a reasonable period of time based on the facts and circumstances of each case and based on the intent and conduct of the taxpayer.

6 In Adams v. Commissioner, 72 T.C. 81, 92 n.16 (1979), we stated as follows:

It was not without considerable deliberation and thought that our decision herein was reached. We can certainly appreciate Congress' desire to eliminate the potential for abuse inherent in dealings with tax-exempt organizations. Also, we are not unaware of the difficulty in drafting legislation which will equitably dispose of a variety of factual settings. Regrettably, however, when considering all the potentially viable alternatives available to assist us in implementing the statute, we were consistently confronted with another statute or well-established rule of law which prevented our reaching a satisfactory resolution of the problems discussed herein.

In the current case there is no evidence of intentional mischief by petitioner, and-in the realities of the business world-56 days (including weekends and holidays), particularly in the absence of a due date provided by respondent, is but a blink. Herein, I would conclude that the petition is timely.

FOLEY, J., dissenting: In section 3463(a) of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, 112 Stat. 685, 767, Congress provided: "The Secretary of the Treasury or the Secretary's delegate shall include on each notice of deficiency * * * the date determined by such Secretary (or delegate) as the last day on which the taxpayer may file a petition with the Tax Court." Congress further provided that the date determined by the Internal Revenue Service (IRS) would establish the deadline for filing a petition with this Court. Section 3463(b) of RRA 1998 amends section 6213(a) by adding the following thereto: "Any petition filed with the Tax Court on or before the last date specified for filing such petition by the Secretary in the notice of deficiency shall be treated as timely filed." The majority concludes that "Because the last date for filing a timely Tax Court petition was not specified by the deficiency notice in this case, the petition could not be filed on or before any such date”, majority op. p. 362, and that "the last sentence of section 6213(a) * * * does not operate in the instant case", majority op. p. 363. I disagree.

The plain language of the statute provides that the IRS must determine a date; this date may establish a deadline that is later than the statutorily prescribed 90-day period; and petitions filed on or before the deadline established by the IRS shall be treated as timely filed. Respondent's failure to provide any specified date is tantamount to providing that there is no deadline. Accordingly, the petition is timely.

The majority asserts that "Respondent's position finds further support in the legislative history". Majority op. p. 362. Again, I disagree. Assuming arguendo that the statute is not clear on its face, the legislative history, on the contrary, bolsters petitioner's contention. In setting forth the rationale for the amendment to section 6213(a), the Senate Finance

Committee report (report) states: "The Committee believes that taxpayers should receive assistance in determining the time period within which they must file a petition in the Tax Court and that taxpayers should be able to rely on the computation of that period by the IRS." S. Rept. 105-174, at 90 (1998), 1998–3 C.B. 537, 626 (emphasis added). Focusing on the statement that "taxpayers should be able to rely on the computation of that period by the IRS", the majority emphasizes that petitioner did not contend that he detrimentally relied on the information in the notice and that the theory of detrimental reliance is not applicable in this case because no misleading information was provided. I agree that the theory of detrimental reliance is not applicable. Neither the statute nor the legislative history imposes such a requirement. While the report provides that "taxpayers should be able to rely on the computation of that period by the IRS", the report does not require a taxpayer to establish detrimental reliance.

Moreover, I believe the IRS provided misleading information to petitioner. While the text of the notice states that "you have 90 days from the above mailing date of this letter *** to file a petition", the space in the upper right corner of the notice, entitled "Last Day to File a Petition With the United States Tax Court", is blank. This notice is more confusing than notices issued under prior law and creates the type of confusion that Congress intended to remedy.

The IRS made a mistake and did not follow the congressional mandate, and, as a result, the petition should, pursuant to section 6213(a), be treated as timely filed. The majority's holding is contrary to the statute and legislative history. In essence, it allows the IRS to circumvent the congressional mandate. That is an unreasonable interpretation of the statute. Accordingly, I respectfully dissent.

COLVIN, J., agrees with this dissenting opinion.