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[25] Reductions in excessive assessments, as opposed to assessments which become legally unenforceable in their entirety, are governed by the abatement statute, 26 U.S.C. § 6404(a):

[26] (a) The Secretary is authorized to abate the unpaid portion of the assessment of any tax or any liability in respect thereof, which -

[27] (1) is excessive in amount, or

[28] (3) is erroneously or illegally assessed.

[29] 26 U.S.C. § 6404(a) (1988). This statute speaks directly to the problem of an assessment excessive in amount because it was computed on an erroneous legal theory. The Secretary is authorized by the statute to “abate” the assessment, which means to reduce the assessment in amount, not to strike it or treat it as void. In addition, § 6404(a) refers to abating a “portion,” implying that abatement is not an all-or-nothing proposition. Under Burns’ theory that an improperly calculated assessment voids the lien, this abatement statute becomes meaningless. We “avoid any statutory interpretation that renders any section superfluous and does not give effect to all of the words used by Congress.” Central Mont. Elec. Power Co-op, Inc. v. Administrator of Bonneville Power Admin., 840 F.2d 1472, 1478 (9th Cir. 1988).

[30] Our construction is in accord with long established precedent in similar cases. In United States v. Rindskopf, 105 U.S. 418, 26 L. Ed. 1131, 2 A.F.T.R. (P-H) 2422 (1881), the parties disputed the quantity of taxable liquor distilled. The Court held that the lower court “erred in instructing the jury that the assessment was to be taken and considered in its entirety, and that the government was entitled to recover the exact amount assessed, or not any sum.” Id. at 422. The taxpayer could show that he distilled less liquor, and “in part” overthrow the assessment. Id.

[31] This is not to say that a lien based on an incorrect assessment always survives. Rindskopf recognized the existence of a category of assessments which could not be abated:

[32] There may undoubtedly be cases where an assessment must stand as an entirety, or not at all; as where an erroneous rate has been adopted by the officer; or where it is impossible to separate from the property assessed the part which is exempt from the tax; or where its validity depends upon the jurisdiction of the commissioner. The present case does not fall within either of these classes. Here the question is as to the quantity of spirits produced on which taxes were not paid. Id.

In re Burns, 1992.C09.42521 ¶ 30-33; 974 F.2d 1064 (9th Cir. 1992).

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