Nellwyn A. Buck - Page 16

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          filed the answer on August 30, 1995, approximately 2-1/2 months             
          after petitioner and Mr. Buck submitted the filed return.                   
               Respondent contends that she was not able to obtain the                
          filed return and verify the information on such return before she           
          filed the answer.  Specifically, respondent asserts that the                
          filed return was not readily available to her Houston District              
          Counsel office because: (1) The filed return had only recently              
          been filed; and (2) the filed return was difficult to locate                
          because it was located under Mr. Buck's account, rather than                
          petitioner's, apparently because Mr. Buck's TIN was the "primary            
          TIN" and petitioner's TIN was the "spousal TIN."                            
               We have no reason to question respondent's explanation.  We            
          also note that the petition contained an allegation that the                
          purported return was "accepted" by respondent "for all purposes"            
          and that assessment of any deficiency against petitioner for the            
          taxable year 1988 was barred by the 3-year statute of                       
          limitations.   Rule 39 obligated respondent to address this                 
          matter in the answer by way of affirmative allegations if                   
          respondent wished to preserve the issue.  Accordingly, we                   
          conclude that respondent's position on August 30, 1995; i.e.,               
          that petitioner was liable for income tax for 1988, was                     
          substantially justified.                                                    
               Finally, petitioner contends that respondent took an                   
          unreasonable amount of time to verify the information on the                
          filed return and settle the case.  Here we recall that                      




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