The opinion
Gerber, J., concurring: I agree with the majority’s conclusion that, in accordance with section 6212(c)(1), a second notice of deficiency may be issued for petitioners’ 1987 taxable year, due to respondent’s fraud determination. I also agree that our holding in Zackim v. Commissioner, 91 T.C. 1001 (1988), revd. 887 F.2d 455 (3d Cir. 1989), is not controlling because the case under consideration is factually distinguishable. Therefore, the outcome of this case would be unchanged irrespective of whether we overruled our Zackim rationale. Accordingly, it is unnecessary to reconsider Zackim.
I write separately because the majority opinion does not say that our failure to address the Zackim rationale is not intended to connote our approval or disapproval of prior holdings. All Judges who have expressed their views agree that respondent is entitled to issue a second deficiency notice here. To the extent that the majority opinion may imply agreement with Zackim, or to the extent that a side opinion agrees or disagrees with Zackim, those views are unnecessary to the resolution of this case and should be considered gratuitous.