Charles J. Dugan - Page 11

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          Rather it appears that petitioner attempted to provide support              
          for his position that he had previously filed his 1991 return.              
          The purported copy was submitted to respondent's Appeals Office             
          as evidence of a filing.  There is no question that the document            
          submitted to the IRS by petitioner purports to be a copy of a               
          previously filed return.  Respondent's argument that the                    
          submission of the purported copy of a return to the IRS Appeals             
          Office (after the petition was filed) constitutes the filing of a           
          return (which, she claims, would invoke section 6013(b)(2)(C)) is           
          unpersuasive.                                                               
               At the time the notice of deficiency was mailed and the                
          petition was filed, no return had been filed by petitioner.                 
          Thus, at that time, petitioner was in the same position as the              
          taxpayers in Millsap v. Commissioner, supra at 938, and the                 
          taxpayer in Phillips v. Commissioner, 86 T.C. 433, 437 (1986),              
          affd. on this issue 851 F.2d 1492 (D.C. Cir. 1988).  In those               
          cases, we held that the taxpayers could elect joint return status           
          after a proceeding was commenced in this Court.  We reasoned in             
          Millsap v. Commissioner, supra at 937, as follows:                          
                    To treat the issue of a taxpayer's filing status                  
               any differently than the issues involving deductions or                
               income items would be arbitrary and without reason.  A                 
               taxpayer is no less entitled to question respondent's                  
               determination of filing status than he is any other                    
               determination. * * *                                                   
               we hold that in situations where deficiency procedures                 
               are availed of and a taxpayer has not filed a return,                  
               the taxpayer may file a return and contest respondent's                
               filing status determination, even though respondent has                




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